author: McEWEN, Judge:

text:
    535 A.2d 1145
    Galen H. WOLGEMUTH, Administrator of the Estate of Gail M. Wolgemuth, Appellant, and Todd W. Hummel, Appellee, v. HARLEYSVILLE MUTUAL INSURANCE CO. and Ross J. Spera and Quentin Riding Club, Erie Insurance Exchange, Ohio Casualty Insurance Co. and Aetna Life & Casualty Company, Appellees.
    Superior Court of Pennsylvania.
    Argued June 8, 1987.
    Filed Jan. 11, 1988.

      Kenneth C. Sandoe, Myerstown, for appellant.
    Alexander Kerr, Philadelphia, for Harleysville, appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and JOHNSON, JJ.
   McEWEN, Judge:

We here provide en banc review of whether a guest passenger, who is a covered person under the terms of a policy of motor vehicle insurance applicable to the host vehicle, and who is injured in a single vehicle accident, may recover underinsurance benefits under the policy of insurance applicable to the host vehicle, when that passenger has already received the limits of the liability coverage under that same policy.

This declaratory judgment action was commenced by appellant, Galen H. Wolgemuth, as administrator of the estate of Gail M. Wolgemuth, to determine whether Harleysville Mutual Insurance Company had properly denied appellant’s claim for underinsurance benefits on the grounds that the policy issued by appellee Harleysville precluded such a claim on the behalf of the estate of Gail M. Wolgemuth. The trial court determined that the policy did preclude such a claim and that the terms of the policy did not violate either the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1701 et seq., or public policy. Appellant has taken this appeal from the entry of summary judgment in favor of appellee Harleysville. We affirm.

Gail M. Wolgemuth and Todd W. Hummel were passengers in a vehicle owned and operated by Ross J. Spera when the automobile was involved in a single vehicle accident, resulting in the death of Gail M. Wolgemuth. Appellee Harleysville had issued a policy of automobile insurance to Ross J. Spera which provided liability coverage in the amount of $100,000.00 as well as uninsured/underinsured motorist coverages each in the amount of $100,000.00. Harleysville paid the full amount of the liability coverage to appellant, but denied the claim for underinsurance benefits on the ground that the claim was precluded by the terms of the policy which provided that the insured vehicle could not be an “underinsured motor vehicle” for purposes of determining entitlement to underinsured motorist benefits.

Appellant concedes that the express terms of the policy itself preclude recovery of underinsured benefits by the estate of Gail M. Wolgemuth, but argues that the policy definition of “underinsured motor vehicle” is void as violative of public policy, and is, as well, contrary to the express provisions as well as the intent of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§ 1701 et seq.

As a result of the enactment of the Pennsylvania Motor Vehicle Financial Responsibility Law, every motor vehicle liability insurance policy issued in the Commonwealth of Pennsylvania must provide underinsured motorist coverage. Section 1731 of the Act provides, inter alia:

§ 1731. Scope and amount of coverage
(a) General rule. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are provided therein or supplemental thereto in amounts equal to the bodily injury liability coverage except as provided in section 1734 (relating to request for lower or higher limits of coverage).
(c) Underinsured motorist coverage. — Underinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.

75 Pa.C.S. § 1781(a), (c).

The act defines the term “underinsured motor vehicle” as a “motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages.” 75 Pa.C.S. § 1702.

The act, as well, requires that all policies of motor vehicle insurance issued in the Commonwealth provide for liability coverage in no less than “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. § 1702. Where an insured obtains liability coverage in the minimum amount permitted under the statute, the policy must provide uninsured and underinsured motorist coverages in amounts equal to the liability coverage. 75 Pa.C.S. §§ 1731(a), 1734. An insured who purchases liability coverage in an amount greater than the minimum amount required by the Motor Vehicle Financial Responsibility Law may obtain uninsured and underinsured coverages in amounts equal to, but not greater than, the amount of his liability coverage. See: 75 Pa.C.S. §§ 1731(a), 1736.

The instant policy of insurance issued by Harleysville provided, with respect to the underinsured motorist coverage:

We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury:
1. Sustained by a covered person; and
2. Caused by an accident.
“Covered person ” as used in this endorsement means:
1. You and any family member.
2. Any other person occupying your covered auto.
3. Any person for damages that person is entitled to recover because of bodily injury to which this coverage applies sustained by a person described in 1. or 2. above.
“Underinsured motor vehicle” means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is not enough to pay the full amount the covered person is legally entitled to recover as damages.
In addition, neither “uninsured motor vehicle” nor “underinsured motor vehicle” includes any vehicle or equipment:
1. Owned by or furnished or available for the regular use of you or any family member, (emphasis supplied).

Appellant argues that because the legislature has made underinsured motorist coverage mandatory, any policy provision such as the provision set forth in appellees policy, which operates to deny a claimant underinsured motorist benefits violates the public policy of this Commonwealth. This argument reflects a misapprehension of the nature of underinsured motorist coverage.

Prior to the passage of the Motor Vehicle Financial Responsibility Law, underinsured motorist coverage, unlike uninsured motorist coverage, was not required in Pennsylvania or regulated by statute. See: Votedian v. General Accident Fire and Life Assurance Corp., 330 Pa.Super. 13, 18, 478 A.2d 1324, 1327 (1984). Our Supreme Court in Davis v. Government Employees Insurance Co., 500 Pa. 84, 454 A.2d 973 (1982), recognized the often inequitable results occasioned by the failure to require mandatory underinsured motorist coverage and noted the:

“oft cited anomaly that those in the position of [claimants who had purchased uninsured motorist coverage and who were injured by a minimally insured driver] would find themselves in a better position were the tortfeasor’s vehicle totally uninsured rather than underinsured.” Gorton v. Reliance Insurance Co., 77 N.J. 563, 570, 391 A.2d 1219, 1223 (1978). This anomaly, however, stems from the fact that the legislature has chosen not to require insurance coverage for those instances in which a tortfeasor’s insurance is insufficient to satisfy the injured party’s claim.

Davis v. Government Employees Insurance Co., supra, 500 Pa. at 91, 454 A.2d at 976 (footnote omitted). Our legislature responded to and resolved this anomaly with the passage of the Motor Vehicle Financial Responsibility Law.

The legislature, in establishing $15,000/$30,000 as the minimum permissible liability coverage, unquestionably realized that in many instances an accident victim would be insufficiently compensated by the tortfeasor even though the tortfeasor was insured. But the legislature, with the passage of the Motor Vehicle Financial Responsibility Law, did ensure that every insured individual who is injured by a negligent, underinsured motorist, will have recourse to at least $15,000 of underinsured motorist benefits either (1) pursuant to the policy of insurance applicable to the vehicle in which the individual was a passenger (if the vehicle was not at fault), or (2) pursuant to a policy of insurance under which the injured claimant is an insured person.

The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage to compensate for the injuries caused by his negligence. Thus, an insured who purchases $100,000.00 of liability coverage to protect others from his negligence, must, by law, be offered the option of purchasing up to $100,000.00 of underinsured motorist coverage to protect himself and his additional insureds from the risk that they will be severely injured by a negligent driver who has liability coverage in an amount insufficient to fully compensate them for their injuries.

The language of the statute itself suggests that underinsurance motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance. See 75 Pa.C.S. § 1731(c). An underinsured motor vehicle, must, by definition, be an insured vehicle. Thus, the statute contemplates one policy applicable to the vehicle which is at fault in causing the injury to the claimant and which is the source of liability coverage (which is ultimately insufficient to fully compensate the victim), and a second policy, under which the injured claimant is either an insured or a covered person. It is the second policy which the statute contemplates as the source of underinsured motorist coverage, where the liability coverage provided by the first policy of insurance is insufficient to fully compensate the claimant for his injuries.

Thus, had Gail M. Wolgemuth been injured in an accident caused by a second vehicle while she was a passenger in the vehicle insured by appellee, appellant would have been entitled to recover the available limit of liability coverage applicable to the vehicle which caused the accident, and, if not fully compensated, to recover underinsured motorist benefits under the policy issued by appellee to Ross J. Spera, and, if still not fully compensated, to recover under-insured motorist benefits pursuant to any policy of motor vehicle insurance under which she was an insured. See: 75 Pa.C.S. § 1733.

However, under the facts of the instant case, the statutory scheme contemplates recovery by appellant of the available limits of liability applicable to the negligent vehicle, i.e., the vehicle insured by appellee, Harleysville, with recourse to underinsurance benefits pursuant to any policy under which Gail Wolgemuth was an insured.

Thus, contrary to the assertion of appellant, the exclusion at issue does not deny underinsured motorist coverage to appellant, but rather requires that such benefits be obtained, under the circumstances of this case, pursuant to a policy of insurance under which Gail M. Wolgemuth was an insured.

We are not here asked to determine, and express no opinion upon, whether an insured, as that term is defined by the Motor Vehicle Financial Responsibility Law, could, under certain circumstances, recover under both the liability and underinsured motorist provisions of a single policy. Appellant’s decedent was a class two beneficiary of the policy issued by appellee Harleysville. As a class two beneficiary, Gail M. Wolgemuth had no recognizable contractual relationship with the insurer of the vehicle, had paid no premiums for such coverage, and had no reasonable expectations as to coverage under the policy issued by appellee. To permit appellant to recover underinsured motorist benefits from appellee Harleysville under the circumstances of this case would be to convert the essentially first party underinsured motorist coverage into third party liability coverage. As the Supreme Court of Minnesota stated in rejecting an identical argument:

Underinsured motorist coverage is first-party coverage and, in that sense, the coverage follows the person not the vehicle. Here, however, the decedent passenger’s heirs have already collected under the liability coverage of the insurer of the Stein car. To now collect further under the same insurer’s underinsured motorist coverage would be to convert the underinsured motorist coverage into third-party insurance, treating it essentially the same as third-party liability coverage. The policy definition defining an “underinsured motor vehicle” to exclude a vehicle owned by or regularly furnished or available to the named insured properly prevents this conversion of first-party coverage into third-party coverage.
The purpose of underinsured coverage is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile. Ordinarily, a passenger injured in a one-car accident involving someone else’s car, such as here, would be able to recover underinsured motorist benefits under his or her own underinsured motorist coverage. Decedent Myers, however, did not own a car and consequently had no such coverage. But Stein’s insurance policy is not designed to compensate Stein or his additional insureds from Stein’s failure to purchase sufficient liability insurance. Thus, we conclude that the definition of uninsured motor vehicle, which expressly excludes the insured vehicle, is not void as violative of public policy.

Myers v. State Farm Mutual Automobile Insurance Co., 336 N.W.2d 288, 291 (Minn.1983). Accord: Preferred Risk Mutual Insurance Co. v. Tank, 146 Ariz. 33, 35-36, 703 P.2d 580, 582-583 (1985); Millers Casualty Insurance Company of Texas v. Briggs, 100 Wash.2d 1, 6-8, 665 P.2d 891, 894-895 (1983); Breaux v. Government Employees Insurance Company, 369 So.2d 1335, 1338 (La.1979).

We conclude, therefore, that the definition of under-insured motor vehicle, contained in the policy issued by appellee Harleysville, does not violate the public policy of this Commonwealth since the Motor Vehicle Financial Responsibility Law “contains no indication of policy clear enough to void a plain, unambiguous provision in an insurance contract____” Antanovich v. Allstate Insurance Co., 507 Pa. 68, 76, 488 A.2d 571, 575 (1985).

Appellant also argues that a policy provision which prevents an occupant of an insured vehicle from collecting underinsured motorist benefits from the insurer of the host vehicle violates the express provisions of Section 1733 of the Motor Vehicle Financial Responsibility Law. We disagree. Section 1733, which sets forth the priority of recovery of underinsured and uninsured motorist benefits, provides as follows:

Where multiple policies apply, payment [of underinsurance/uninsured benefits] shall be made in the following order of priority:
(1) A policy covering a motor vehicle occupied by the injured person at the time of the accident.
(2) A policy covering a motor vehicle not involved in the accident with respect to which the injured person is an insured.

75 Pa.C.S. § 1733 (emphasis supplied).

By its very terms Section 1733 is applicable only where multiple policies providing uninsured/underinsured motorist coverages for the injured claimant are applicable and merely regulates the priority of recovery. It does not establish or purport to determine entitlement to such benefits. See and compare: Gentile v. West American Insurance Exchange, 367 Pa.Super. 99, 532 A.2d 472 (1987).

Appellant also argues that, due to the remedial nature of the Motor Vehicle Financial Responsibility Law, its provisions must be construed liberally to afford the greatest possible coverage to injured claimants. It is undoubtedly correct that the Motor Vehicle Financial Responsibility Law is to be liberally construed. See: 1 Pa.C.S. § 1928(c). We may not, however, rewrite the Motor Vehicle Financial Responsibility Law "under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Rather, we must be guided in our interpretation of the Motor Vehicle Financial Responsibility Law by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq. Our object in interpreting this or any legislation is “to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). In those instances where:

the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S. § 1921(c).

The Motor Vehicle Financial Responsibility Law, unlike the now repealed No-fault Motor Vehicle Insurance Act, does not contain a statement of findings and purpose. However, the legislative history of the Motor Vehicle Financial Responsibility Law suggests that the major considerations prompting the repeal of the No-fault Act and the passage of the Motor Vehicle Financial Responsibility Law were the rapidly escalating cost of coverage under the No-fault Act and the increasingly high numbers of uninsured motorists. The rationale for the inclusion of mandatory underinsured motorist coverage in the Motor Vehicle Financial Responsibility Law was not the subject of debate or specific discussion by the members of either the House or the Senate. Our reading of the uninsured/underinsured provisions of the Motor Vehicle Financial Responsibility Act, however, compels the conclusion that recovery by appellant of underinsured motorist benefits, under the circumstances attendant this case, was not intended or anticipated by the legislature.

Section 1921 of the Statutory Construction Act also requires that we consider the “consequences of a particular interpretation.” 1 Pa.C.S. § 1921(c)(6). Were we to declare the exclusion at issue void and permit appellant to convert the underinsured motorist coverage into third party liability coverage, our decision would necessarily effect an increase in the cost of the mandatory underinsured motorist coverage. As heretofore observed, one purpose of the legislature in enacting the Motor Vehicle Financial Responsibility Law was to reduce the cost of purchasing motor vehicle insurance, an objective we would neglect were we to accept the invitation of appellant to rewrite the Motor Vehicle Financial Responsibility Law under the guise of liberal interpretation.

Having concluded that the policy definition of underinsured vehicle, which excluded the insured vehicle does not violate either the express provisions or the purpose of the Motor Vehicle Financial Responsibility Law, and does not offend public policy, it is unnecessary to determine whether the provisions in the policy issued by appellee concerning setoffs are valid and enforceable against a class two insured.

JUDGMENT AFFIRMED.

      . Todd W. Hummel survived but sustained serious personal injuries as a result of the accident. Todd W. Hummel did not file a notice of appeal although the two actions were consolidated in the court of common pleas.

      . These amounts are, of course, merely the minimum amounts required by law. An insured wishing to purchase liability coverage in an amount greater than the minimum coverage may do so. See: 75 Pa.C.S. § 1791.

      . The legislature has thus prevented an insured from providing greater coverage, via uninsured/underinsured coverages, for himself and his additional insureds than the amount of coverage he provides for others injured through his negligence.

      . The Motor Vehicle Financial Responsibility Law defines "insured” as "[a]ny of the following:
      (1) An individual identified by name as an insured in a policy of motor vehicle liability insurance.
      (2) If residing in the household of the named insured:

        (i) a spouse or other relative of the named insured; or
      (ii) a minor in the custody of the named insured or relative of the named insured.”
      75 Pa.C.S. § 1702

      . While certainly not determinative of the issue, we note that the form of the policy issued by appellee Harleysville was submitted to and approved by the Insurance Commissioner pursuant to the Act of May 17, 1921, P.L. 682, art. III, as amended, 40 P.S. § 477.

      . Our Supreme Court, in Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), described and applied the three level beneficiary classification contained in most policies of insurance as well as in the policy issued by appellee. Under this classification system, appellant’s decedent was a "class two” insured, as her entitlement to coverage was based solely upon her occupancy of the vehicle at the time of the accident.

      . Our research has disclosed only one court which has held a provision of a policy of insurance excluding the insured vehicle from the definition of “underinsured motor vehicle" invalid. The Court of Appeals of South Carolina, in Bratcher v. National Grange Mutual Insurance Company, 292 S.C. 330, 356 S.E.2d 151 (Ct.App.1987) (petition for writ of certiorari pending), held that the son of the named insured, injured while a passenger in the insured vehicle, was entitled to underinsurance motorist benefits on the basis of state cases holding that “ ‘[wjhere an insurance policy is issued pursuant to a statute which authorizes an exception to the coverage, all other exceptions are excluded.’ ” Id. at 332, 356 S.E.2d at 152, quoting McDonald v. State Farm Mutual Automobile Insurance Company, 287 S.C. 40, 44, 336 S.E.2d 492, 494 (Ct.App.1985).

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101 et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . See: Senate Journal, October 4, 1983, and January 25, 1984; House Journal, December 13, 1983, and December 14, 1983.

      . See: Remarks of Rep. Dawida, House Journal Dec. 14, 1984, pg. 2244 ("The escalation of costs has come in a number of ways: one, from court decisions that could never have been foreseen by those in the legislature nine years ago who passed the no-fault law----”); Remarks of Rep. Bowser, House Journal Dec. 13, 1983, pg. 2151; Remarks of Rep. Daiwda, Dec. 13, 1983, pg. 2151; Remarks of Rep. DeVerter, House Journal Dec. 13, 1983, pg. 2149 and Dec. 14, 1983, pg. 2244.

      . We note that the Pennsylvania Insurance Department’s Guidelines For Filings Under Motor Vehicle Financial Responsibility Law provide at C-6: "Policies may not provide for any reduction of uninsured motorist or underinsured motorist benefits because of any first party benefits paid____ Policies may provide that a person’s losses and damages resulting from injuries due to an accident with an uninsured/underinsured motorist will be reduced by any amounts received from the uninsured/underinsured motorist in determining the amount of uninsured/underinsured benefits payable to that person.”


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    535 A.2d 1152
    COMMONWEALTH of Pennsylvania v. Michael H. LLOYD, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1987.
    Filed Jan. 11, 1988.
    Petition for Allowance of Appeal Denied June 1, 1988.

      Stuart A. Cilo, Burnham, for appellant.
    John T. Robinson, District Attorney, Middlesburg, for Com., appellee.
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

This is an appeal from the Judgment of Sentence entered after a jury trial on convictions of felony escape, aggravated assault, reckless endangerment, terroristic threats, kidnapping, unlawful restraint and criminal conspiracy.

Appellant raises three errors to this court: First, whether the trial court erred in denying his Motion to dismiss the above charges on the basis of the Commonwealth’s violation of Pa.R.Crim.P. 1100; secondly, whether the trial court also committed error in denying appellant’s Motion to dismiss the above charges because the Commonwealth did not comply with the provisions of the Interstate Compact on Detainers, specifically, 42 Pa.C.S.A. § 9101, Article 111(a); and thirdly, whether the trial court erroneously neglected to advise appellant of the potential prejudice to him by failing to perform a proper colloquy with him on the question of counselled representation. Perceiving no error, we affirm.

Appellant was convicted by a Snyder County Common Pleas Court jury on June 20, 1984, of the above charges. He was sentenced on September 17, 1984, to an aggregate term of eight and one-half to twenty years on the most serious charge, kidnapping, a felony of the first degree. The sentences on the other charges were to run concurrently with the kidnapping sentence. An appeal was taken from this judgment of sentence on October 8, 1984. We will consider the first two issues together.

Appellant asserts that he was brought to trial beyond the 180-day period in Snyder County after he was advised that a detainer had been lodged against him and after he allegedly informed, in writing, the District Attorney of Snyder County and the trial court of the place of his incarceration and his request for a final disposition of the charges against him pursuant to Article 111(a) of the Agreement on Detainers, 42 Pa.C.S.A. § 9101.

This voluminous and procedurally complex record discloses that appellant was a fugitive from Pennsylvania on the instant charges, having escaped on June 18, 1983, from the Snyder County Jail (N.T. 6-11-84, 9-10) and fled to the State of Wyoming. While in that jurisdiction, appellant was arrested and charged by the United States Government on approximately July 1, 1983, for violating the United States Crimes Code, specifically, 18 U.S.C. §§ 922(a)(6), and (h) and 924(a) for having made a false application to receive a firearm transported in interstate commerce and receiving said firearm while a probation violator. On July 20, 1983, appellant pleaded guilty to these four-count charges before the United States District Court for the District of Wyoming and was subsequently sentenced. The record does not disclose the date of sentence nor the duration thereof. Appellant was then transferred from the State of Wyoming to the Federal ■ Penitentiary at Leavenworth, Kansas, on August 18, 1983. The District Attorney was also proceeding to obtain appellant’s temporary custody but pursuant to Article IV of the Interstate Agreement (42 Pa.C.S.A. § 9101). This entire process lasted approximately six and one half months.

On July 25, 1983, the District Attorney wrote to appellant notifying the latter of his intention to secure appellant for prosecution on the instant charges then pending in Snyder County as soon as appellant’s sentence on the aforementioned federal charges in the United States District Court in Wyoming had been handed down (Commonwealth’s Exhibit No. 10). This letter was in response to appellant’s letter to the District Attorney dated July 12, 1983 (Commonwealth’s Exhibit No. 9), while incarcerated in a Cheyenne, Wyoming jail, informing the District Attorney of appellant’s desire to waive extradition to Pennsylvania. This, incidentally, was prior to the entry of his guilty plea to the aforementioned federal charges on July 20, 1983. Appellant’s second letter to the District Attorney, dated July 22, 1983, was in the nature of a “Formal Request Pursuant [sic] to ‘The Interstate Agreement on Detainers,’ [sic] For [sic] disposition of all charges outstanding in your county.” (Defendant’s Exhibit No. 33).

Appellant, after making his self-styled formal request of July 22, 1983, which he purports complies with Article 111(a) of the said Agreement on Detainers, admits that he took no further action to process his release to Pennsylvania custody to be tried on the instant charges until he received a notice of a detainer from a District Justice in Oil City, Venango County, Pennsylvania on September 20, 1983 (N.T. 6/13/87, 157). He then wrote a letter dated September 21, 1983, to the District Justice in Oil City “formally request [ing] disposition of that [Venango County] detainer in accordance with the Interstate Agreement on Detainers.” (Defendant’s Exhibit No. 41). Subsequently, On October 14, 1983, he received a notice of a detainer on the instant Snyder County charges (Defendant’s Exhibit No. 43), pursuant to the initial September 12, 1983 Form 5 Request for Temporary Custody directed to the prison officials at Leavenworth Penitentiary (Defendant’s Exhibit No. 43).

In the meantime, the District Attorney of Snyder County, in attempting to obtain temporary custody of appellant for trial on the Snyder County charges, first, by letter dated July 20, 1983 (Commonwealth’s Exhibit No. 1) to the U.S. Attorney’s Office in Cheyenne, Wyoming, inquired whether the United States Government would release appellant to the temporary custody of Pennsylvania to be tried on the Snyder County charges prior to appellant’s prosecution and sentencing in Federal Court in Wyoming. Mr. Robinson, the District Attorney of Snyder County, was informed by David Kern, an Assistant United States Attorney for the District of Wyoming, that appellant had already pleaded guilty to the federal charges on July 20, 1983 and was awaiting sentencing (Commonwealth’s Exhibit No. 2). He was subsequently informed by the prison authorities at Leavenworth that appellant would not be released from federal custody at Leavenworth to the custody of Pennsylvania because of prior escape episodes when this procedure had been utilized on previous occasions. (N.T. 6/4/84, 173). Mr. Robinson further explained that the Leavenworth authorities refused to recognize both the Form 5 filed on September 12, 1983, requesting temporary custody of appellant and the resultant Notice of Untried Charges (Defendant’s Exhibit No. 3) for that reason. The Leavenworth authorities also refused to acknowledge the Interstate Agreement by not responding to the Form 5 request for temporary custody (N.T. 6-4-87, 174). In addition, numerous telephone calls were made to Leavenworth by Mr. Robinson and his two secretaries, Mrs. Houtz and Mrs. Schrump, to ascertain appellant’s whereabouts and status when he was being transferred from Cheyenne, Wyoming, to Leavenworth and from there to Lewisburg Federal Penitentiary. (See their testimony of June 4, 1983, generally, N.T. 145-208, passim). It was thus necessary for Mr. Robinson, on October 6, 1983, to write to the United States Bureau of Prisons requesting a transfer of appellant from Leavenworth to the federal penitentiary in Lewisburg, Pennsylvania, “to expedite the custodial exchange process.” (Commonwealth’s Exhibit No. 5; see also N.T. 6-4-84, 173-76).

On October 19, 1983, the Leavenworth authorities advised Mr. Robinson that appellant would not be temporarily released to Snyder County for trial from Leavenworth (N.T. 6-4-84, 180). Thus, approximately from October 6, 1983, the date of the letter to the Prison Bureau, or October 11, 1983, the date of Mr. Robinson’s telephone conversation with a Mr. Attig from Leavenworth, until December 6, 1983, the prosecuting officials in Snyder County were awaiting word on whether appellant would be or had been transferred from Leavenworth to the federal penitentiary in Lewisburg, Pennsylvania (N.T. 6-4-84, 179, 197). On approximately December 6, 1983, Mr. Robinson, by phone call to Lewisburg was only then made aware that appellant would be transferred to Lewisburg within that two-week period (N.T. 6-4-84, 180).

Although the record does not indicate the exact date of appellant’s arrival from Leavenworth to Lewisburg, his transfer was completed approximately in late December 1983, or early January 1984. This is borne out by two letters in the record. One, dated January 9, 1984, from appellant to Mr. Robinson informs the latter of the actual event of appellant’s transfer from Leavenworth to Lewis-burg, requests that all correspondence be directed to appellant there and informs the District Attorney that appellant will be filing various pre-trial motions (Defendant’s Exhibit No. 46). The other letter from appellant to the Clerk of Courts of Snyder County, Pennsylvania, dated January 10, 1984, informs that official of appellant’s address change, and requests copies of the criminal complaints filed against him and advises that he will be preparing pre-trial motions (Defendant’s Exhibit No. 47). Immediately subsequent to the letter of January 9, 1984, the District Attorney of Snyder County, on January 10, 1984, prepared a Form 5 Request for Temporary Custody pursuant to Article IY(a) of the Agreement. This form was filed with the Prothonotary of the Snyder County Common Pleas Court on January 16, 1984 (Commonwealth Exhibit No. 6). Appellant then on January 12, 1984, initially refused to sign a Memorandum requesting the 30-day waiting period or waiving the applicable period as provided for in Article IV(a) of the Agreement (Defendant’s Exhibit No. 38).

Accordingly, by letter dated January 13, 1984, Lewisburg officials informed Mr. Robinson that appellant had refused to waive the 30-day waiting period and would be given that time for the Governor to Act upon the prisoner’s contest of transfer pursuant to Article IV(a) (Commonwealth’s Exhibit No. 11). Nevertheless, by letter dated January 23, 1984, and filed on January 31, 1984, with the Prothonotary of Snyder County, appellant informed the trial court of his waiver of the 30-day time period (Commonwealth’s Exhibit No. 12). Appellant was then released to the Commonwealth and brought to the Huntingdon State Correctional Facility on February 13, 1984, to await trial on the instant charges. Trial commenced in Snyder County Common Pleas Court on June 11, 1984, after exhaustive omnibus pre-trial and suppression motion hearings on June 4, 1984 and June 11, 1984, continuing on June 13, 1984 and June 19, 1984. Additionally, the trial court held a hearing on February 22, 1984, on appellant’s Motion to dismiss as well as an arraignment hearing on May 2, 1984.

We find that the foregoing minute delineation of this protracted and complex scenario from which the instant appeal evolves is a necessary adjunct to an appreciation of the first two issues now before us.

Appellant claims that the Commonwealth violated Article 111(a) (42 Pa.C.S.A. § 9101) of the Agreement on Detainers. The result of this violation, appellant insists, was the expiration of the 180-day period during which the Commonwealth is required to bring an accused to trial after an accused “causefs] to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint____” (Article 111(a), 42 Pa.C.S.A. § 9101). According to appellant, the run date on these charges was February 2, 1984, which is purportedly 180 days after the date appellant claims the District Attorney received appellant’s request for final disposition, or August 4, 1983. After review of the exhaustive record in this case, we disagree.

Article 111(a) (42 Pa.C.S.A. § 9101) provides:

§ 9101. Agreement on detainers
The Agreement on Detainers is hereby enacted into law and entered into by this Commonwealth with all other jurisdictions legally joining therein in the form substantially as follows:
Agreement on Detainers
The contracting states solemnly agree that:
Article III
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

Emphasis supplied.

Subpart (b) further requires:

(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.

Emphasis supplied.

We consider it useful to our determination that no violation of either Rule 1100 or Article III occurred here to set forth the reasoning supportive of the trial court’s denial of appellant’s Motion to dismiss the charges as follows:

Court is now going to issue its ruling with respect to the various motions that have been filed both by Defendant and by the District Attorney. The first and in some ways the most important set of motions are those that have to deal with the Rule 1100 and the Interstate Agreement on Detainers as to the running of time.
With respect to the Interstate Agreement on Detainers, the Court — the critical question is whether or not the letters which were sent by Mr. Lloyd and received by the District Attorney and the Clerk of Court in early August of 1983, were sufficient to start the 180 days running under Article III of the Interstate Agreement on Detainers.
While there is some case law to that affect, [sic] and I have the cases you have cited, Mr. Lloyd, it is the Court’s view that the letters were insufficient for that purpose, because Article III requires not only the letter from the prisoner, but goes on to require further that the request of prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decision of state parole agency relating to the prisoner.
And there are other requirements with respect to the forwarding of those items to the prosecuting attorney. And it is this Court’s opinion that for the prosecutor to be held to the running of 180 day based on those letters alone when the remaining requirements of Article III have not been complied with is not proper.

N.T. 6-18-84, 94-96.

Similarly, under Rule 1100 of the Pennsylvania Rules of Criminal Procedure, the Court, after hearing — and all of this has been after hearing in which the Defendant was present, the Court finds that the Commonwealth of Pennsylvania has proven that the Defendant was unavailable for trial under the provisions of Pennsylvania Rule of Criminal Procedure 1100(d) from June 19, 1983, to February 13, 1984, and so it determines that the Rule 1100 run date is August 11, 1984.
The Court recognizes that just because a person is incarcerated is not reason alone to assert that they [sic] are [sic] unavailable for trial during that period, [sic] and that the Rule 1100 applies to the Defendant in this case as it does to Defendant in any case. But the Court finds that the Commonwealth has exercised all due diligence in attempting to bring the Defendant to trial promptly and in a speedy manner during the period from the filing of the complaint, June 19, 1983, until custody was actually obtained February 3, 1984.
The letter from — letter or letters from Mr. Lloyd certainly put the District Attorney on notice that he did need [sic] to take some action, but he did that. Got [sic] no response to the Form 5 filed with Levenworth [sic]. Proper [sic] response was obtained in the filing of Form 5 at Lewisburg. Consequently [sic] did obtain custody February 13th.

N.T. 6-18-84, 96-97.

[ T]he Defendant’s corresponding motion for dismissal based either on the Interstate Agreement for Detainers or Rule 1100 is denied.

N.T. 6-18-84, 97-98.

Appellant argues that the Commonwealth violated Article III(a)’s requirement that a prisoner be brought to trial within 180 days after notifying the District Attorney of Snyder County of his request for final disposition of the outstanding charges pending in Snyder County. Appellant wrote informal letters to the District Attorney of Snyder County dated July 13, 1983 and July 22, 1983. The former communication requests, without more, the prosecutor to take “necessary steps to obtain [appellant’s] return.” (Commonwealth’s Exhibit No. 9). The latter, a mere one page informal letter, “purports to be appellant’s Formal Request Pursuant [sic] to 'the Interstate Agreement on Detainers,’ For disposition of All Charges [sic] outstanding in your county.” (Defendant’s Exhibit No. 33). However, the record here reveals a deficiency in this procedure, in terms of the Agreement’s provisions, to trigger the 180-day requirement of Article 111(a). That is, appellant’s request on both occasions was unaccompanied by

“a certificate of the appropriate official having custody of. the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.”

Id. Moreover, the record is devoid of any indication that appellant complied with Article 111(b), supra, in submitting his “requests.”

In Commonwealth v. Wagner, 221 Pa.Super. 50, 289 A.2d 210 (1972), this court held that the procedure set forth under subpart (b) of Article III thereof could not be ignored by the prisoner. At the time of Wagner’s trial, the United States was not yet a party to this compact. Therefore, the Agreement on Detainers was inapplicable to Wagner, a federal prisoner and fugitive from this Commonwealth seeking disposition of his Pennsylvania charge of larceny. Nevertheless, our court opined that the procedure set forth in then 19 P.S. § 881 to be followed by a Pennsylvania prisoner awaiting disposition of untried Pennsylvania charges, was analogous to that required by the Interstate Agreement. Subsequently, in Commonwealth v. Eisenhauer, 232 Pa.Super. 336, 331 A.2d 786 (1974), we determined that Eisenhauer’s failure to inform his Maryland prison custodians of his demand for final disposition of the charges pending in Pennsylvania, from which jurisdiction he was a fugitive, vitiated the Commonwealth’s obligation to bring him to trial within 180 days of his purported request to the Berks County District Attorney. The Eisenhauer court noted that Eisenhauer’s failure to comply with this provision of the Interstate Agreement, alone, was sufficient to toll the running of the 180-day period. Cf. Commonwealth v. Gonce, 320 Pa.Super. 19, 466 A.2d 1039 (1983) (improper delivery of request for final disposition to County Clerk of Courts, rather than to the County District Attorney, as required by Article III, did not entitle the prisoner to be tried within 180 days of his alleged request). See also Johnson v. Cuyler, 535 F.Supp. 466 (E.D.Pa.1982), aff'd 714 F.2d 123 (3d Cir.1982) (federal court interpretation of Article III requires letter requests for final disposition of state charges be proper; if not, then letter requests are not sufficient to invoke the time constraint of Article III).

We do not construe appellant’s letters of July 13, 1983, and July 22, 1983 to be proper requests contemplated by Article 111(a) for the additional reason that at the time of those requests, appellant was not a sentenced prisoner who “has entered upon a term of imprisonment in a penal or correctional institution of a party state” (Id.) Unless and until so sentenced, the provisions of the Interstate Agreement are inapplicable to a prisoner. Commonwealth v. Koonce, 511 Pa. 452, 515 A.2d 543 (1986); Commonwealth v. Johnson, 305 Pa.Super. 310, 451 A.2d 546 (1982); Commonwealth v. Heath, 288 Pa.Super. 119, 431 A.2d 317 (1981). See also Commonwealth v. Alexander, 318 Pa.Super. 344, 464 A.2d 1376 (1983); Commonwealth ex rel. Coleman v. Cuyler, 261 Pa.Super. 274, 396 A.2d 394 (1978). While we are unable to ascertain from the record the exact date of sentencing on the federal charges in the United States District Court for the District of Wyoming, we do know that this occurred some time subsequent to appellant’s second letter dated July 22, 1983. This is so because by letter dated July 26, 1983 (Commonwealth Exhibit No. 2), David A. Kern, the Assistant United States Attorney assigned to prosecute appellant’s firearm charge in federal court in Wyoming, informed Mr. Robinson that appellant had pleaded guilty on July 20, 1983, and would be sentenced upon completion of the presentence report.

Thus, appellant’s “requests” of July 13, 1983, and July 22, 1983 — the only documents we can ascertain of record which pretend to be anything even approaching Article III requests — appear deficient in two respects: namely, neither letter carries with it the certificates required by Article 111(a) and (b) and both letters were sent to the District Attorney of Snyder County prior in time to appellant’s entry upon a term of imprisonment — a prerequisite under Article 111(a) — pursuant to his sentencing in federal court in Wyoming. For these reasons, we conclude that the Commonwealth was relieved of any responsibility under Article 111(a) to try appellant within 180 days after delivery to the prosecutor of his purported requests for final deposition of the charges.

We turn now to address appellant’s corollary argument that the Commonwealth violated Rule 1100 of the Pennsylvania Rules of Criminal Procedure and determine this to be equally meritless. Appellant claims that the Commonwealth ignored, in particular, the provisions of Pa. R.Crim.P. 1100(d) which sets forth periods of excludable time. He argues that he was unavailable pursuant to Rule 1100(d)(3)(i) but only for the period of his escape through the time he claims the District Attorney should have received his purported request for final disposition, or from June 19, 1983, through August 4, 1983. See Commonwealth v. Carter, 329 Pa.Super. 490, 478 A.2d 1286 (1984) (if authorities diligent in ascertaining defendant’s whereabouts, time defendant is fugitive is excludable, and defendant does not contest this point); Commonwealth v. Radogna, 317 Pa.Super. 586, 464 A.2d 478 (1984) (same). Appellant does not consider the period from June 19, 1983 through February 13, 1984, the date on which appellant’s custody was finally relinquished to Pennsylvania authorities, as excludable under Rule 1100(d)(3)(i) despite the Commonwealth’s record difficulty in procuring his temporary custody from federal prison authorities. The record chronology, as set forth supra, demonstrates that the Commonwealth’s attempts to secure temporary custody of appellant spanned a period from approximately mid-August 1983, to mid-February 1984. This showing amply satisfies us that the Commonwealth exhibited due diligence in attempting to secure the custody of appellant for trial and that the time encompassed in obtaining appellant’s availability for trial in this jurisdiction is excludable for the purpose of Rule 1100.

Due diligence is a fluid concept which escapes precise definition; rather, it must be evaluated on a case by case basis. In this regard, the Commonwealth’s efforts to secure a defendant for trial must meet the standard of reasonability. And, for the purpose of Rule 1100(d), a defendant incarcerated in another jurisdiction will be deemed “unavailable” for the period of time during which his presence, despite the Commonwealth’s duly diligent efforts, cannot otherwise be obtained. Commonwealth v. Maxwell, 355 Pa.Super. 575, 513 A.2d 1382 (1986); allocatur granted, 513 Pa. 633, 520 A.2d 1384 (1987); Commonwealth v. DeMarco, 332 Pa.Super. 315, 481 A.2d 632 (1984); Commonwealth v. Carter, supra. Moreover, “[f]or purposes of subparagraph (3)(i) [of Rule 1100(d) ], in addition to any other circumstances precluding the availability of the defendant ... the defendant should be deemed unavailable for the period of time during which ... a responding jurisdiction delayed ... extradiction____” Comment to Pa.R.Crim.P. 1100; Commonwealth v. DeMarco, supra.

While involving a trek through the diplomatic channels of the United States Departments of State and Justice to obtain extradition of a defendant from the Canadian government, we find the factors employed in analyzing due diligence considerations by the court in Commonwealth v. DeMarco, supra, equally applicable here. The court began by noting that due diligence is a concept which defies rigidness but, rather, must be determined for each case. There, as here, the Commonwealth authorities relied on the authorities from the responding jurisdiction to keep the former apprised of the progress of appellant’s extradition proceedings. Once it is determined that the Commonwealth has followed the procedure suggested by the custodian jurisdiction and has justifiably relied on the latter’s assertions, due diligence is firmly established. Id. Finally, any period of inactivity is excluded where, as here, the Commonwealth believed, not unreasonably, that it had pursued proceedings for the prisoner’s return to the Commonwealth to the fullest extent possible. Id. Cf. Commonwealth v. Carter, supra (due diligence established where defendant, a federal prisoner awaiting trial on federal charges, would not be released to Commonwealth until conclusion of federal trial, and Commonwealth could not do much else except to lodge detainer against prisoner and pursue his transfer to the Commonwealth in a timely and viligant fashion after his federal trial concluded). As a result, the DeMarco court held that because defendant there was unavailable for trial until his return to Pennsylvania from Canada, his trial began well within 180 days of his availability.

Instantly, appellant was released to the custody of this Commonwealth on February 13, 1984, from federal confinement at Lewisburg. The trial court determined, and correctly, we think, “that the Defendant was unavailable for trial under the provisions of Pennsylvania Rule of Criminal Procedure 1100(d) from June 19, 1983, to February 13, 1984, and so it determines that the Rule 1100 run date is August 11, 1984.” (N.T., 6-18-84, 96). Appellant’s trial began on June 11, 1984, with the selection of the jury (N.T., 6-18-84, 96), which was exactly two months before the run-date of August 11, 1984 (see N.T., 6-18-84, 96). Even if the Commonwealth could have somehow obtained appellant’s custody more swiftly, by proceeding, for example, under the Uniform Extradiction Act, 42 Pa.C.S.A. § 9121 et seq., prior to appellant’s sentencing in federal court in Wyoming, it is highly unlikely that this end could have been realized in light of the Leavenworth officials’ refusal to release appellant and their reasons therefor. See Commonwealth v. Koonce, supra; Commonwealth v. Car ter, supra. Due diligence only requires the showing of a reasonable effort to procure a defendant for trial, not perfect vigilance and punctiliousness. Commonwealth v. Maxwell, supra; Commonwealth v. DeMarco, supra; Commonwealth v. Carter, supra. It is measured by what was done by the Commonwealth, not by what was not done. Commonwealth v. DeMarco, supra.

This is not the case where the Commonwealth sat by and did nothing to secure appellant’s presence for trial. Instead, subsequent to imposition of sentence on appellant by the United States District Court for the District of Wyoming, and on September 12,1983, the District Attorney filed its initial Form 5 request for temporary custody directed to the Leavenworth prison officials. Through numerous telephone calls between the Leavenworth officials and the District Attorney’s Office, Mr. Robinson was able to ascertain that the prison officials at Leavenworth would not release appellant. This resulted in Mr. Robinson’s October 6, 1983, letter to the United States Bureau of Prisons requesting appellant’s transfer to Lewisburg. This event ultimately took place in late December 1983 or early January 1984. On February 9, 1984, the Commonwealth was advised that because appellant initially entered a contest to his return to Pennsylvania subsequent to his transfer to Lewisburg but failed to process it within the 30-day time limitation, the Commonwealth was being granted temporary custody of appellant. Appellant was surrendered to the Commonwealth on February 13, 1984, and lodged in the Huntingdon State Correctional Institution. Pursuant to Article IY(b) of the Detainers’ Agreement, appellant’s trial commenced on June 11, 1984, which was within the 120-day period prescribed by that Article.

In view of the foregoing, we conclude that no violation of appellant’s speedy trial rights occurred either under Article 111(a) of the Detainers’ Agreement or by ignoring the mandates of Pa.R.Crim.P. 1100.

Appellant thirdly asserts that the trial court did not warn him of the possibility of prejudice attendant to pro se representation and failed to conduct the proper colloquy to determine if appellant’s waiver of counsel was knowing, voluntary and intelligent.

First, the United States Supreme Court has held that an accused’s right to forego counselled representation is of constitutional dimension. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Our courts have followed this edict. Commonwealth v. Szuchon, 506 Pa. 228, 484 A.2d 1365 (1984); Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978); Commonwealth v. Celijewski, 324 Pa.Super. 185, 471 A.2d 525 (1984); Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). Of course, this right is not without exception and is tempered by a record showing of a knowing and intelligent abandonment thereof. Id.

We gather from an examination of appellant’s brief that the primary focus of his concern is on the allegedly deficient colloquy at the time of his arraignment on May 2, 1984, and at the February 22, 1984, hearing in his Motion to dismiss. He initially states that his arraignment colloquy “arguably satisfies] the requests of [Criminal Procedure] Rule 318(c).” Appellant’s Brief p. 15. However, he then asserts: “The colloquy at arraignment was clearly inadequate and did not meet even the minimal standards suggested by the Comments to Rule 318(c), and certainly did not meet the ‘comprehensive and penetrating’ inquiry required by the cases.” Appellant’s Brief, p. 15. Pennsylvania Rule of Criminal Procedure 318(c) states: “Proceedings Before a Judge. When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary and intelligent waiver of counsel.”

Our examination of the aforesaid colloquy conducted at arraignment on May 2, 1984, reveals that the trial judge covered each of the six informational points to be elicited from a criminal defendant to test his awareness of the importance and effect of the waiver consequences. Appellant’s assertion to the contrary is belied by the record. See N.T. 5-2-84, 2-4. Commonwealth v. Thier, 354 Pa.Super. 7, 510 A.2d 1251 (1986); Comment following Pa.R.C.P. 318. The trial court repeatedly reminded appellant that his standby appointed counsel, Harry L. Wilcox, was available to him for consultation as needed. We find that this colloquy demonstrates that appellant’s choice to abandon counselled representation was a knowing and deliberate one, especially in light of the fact that appellant had at his disposal standby counsel. Commonwealth v. Davis, supra; Commonwealth v. Dooley, 332 Pa.Super. 227, 481 A.2d 336 (1984); Commonwealth v. Celijewski, supra; Commonwealth v. Palmer, supra; Pa.R.Crim.P. 318(d).

Our determination in this regard is not altered as a result of our review of the February 22, 1984, proceeding on appellant’s Motion to dismiss. Appellant had available to him standby counsel, Michael T. Hudock, who was ultimately appellant’s standby trial counsel. At the February 22, 1984 hearing appellant was asked if he had sufficient opportunity to consult with Mr. Hudock. He replied affirmatively (N.T. 2-22-84, 4). Appellant was then informed by the trial court that Mr. Hudock would represent him and was asked if he desired counselled representation. Appellant responded that counsel’s standby status would suffice for his (appellant’s) purposes (Id.).

It is true, as we have stated, that the trial court’s inquiry must delve into ascertaining whether an accused’s relinquishment of his right to counsel is a knowing and intelligent one. Commonwealth v. Suzchon, supra; Commonwealth v. Davis, supra; Commonwealth v. Thier, supra, Commonwealth v. Dooley, supra; Commonwealth v. Celijewski, supra; Commonwealth v. Palmer, supra. It is also the law that any shortcoming relative to this colloquy cannot be gauged to the quality of an accused’s self-representation nor justified on the basis of his prior experience with the system. Commonwealth v. Celijewski, supra; Commonwealth v. Palmer, supra. It is equally evident, however, that where, as here, standby counsel was available to confer with the accused, no need exists to review the colloquy for completeness by the same standards of a full waiver colloquy. Commonwealth v. Palmer, supra; see Comment to Rule 318, supra note 7. At the hearing on February 22, 1984, the trial court informed appellant that Mr. Hudock “will represent you in this matter, if you care to have him do so. Do you care to have him represent you?”

MR. LLOYD: Can he stand by if I need him?
THE COURT: All right. You [Mr. Hudock] stand by if he needs you.

N.T. 2-22-84, 4.

Where, as here, standby counsel has been appointed and where, as here, the trial court urged appellant to confer with counsel throughout, the full requirements of the Rule 318(c) colloquy (supra note 7) need not be met. Commonwealth v. Palmer, supra. This is termed a partial waiver which is, in effect, a constitutional exercise to proceed pro se and with counsel as distinct from the right to proceed pro se and without counsel. Id.

It bears noting that Mr. Hudock was ultimately appointed standby counsel for the trial, and the court informed appellant at that time that counsel was advised to confer with appellant during recess, that the manner in which appellant could utilize counsel’s services was as the former wished and that appellant could desire Mr. Hudock to conduct the actual trial as appointed counsel if he (appellant) would only inform the Court on the record (N.T. 6-19-84, 11-12). Again, we find that appellant exercised a knowing and deliberate choice to proceed as he did at the February 22, 1984 hearing, and he cannot now be heard to complain.

Judgment of sentence affirmed.

      . We are also filing a disposition on a non-consolidated companion case relating to this same appellant’s appeal of denial of post-conviction relief. See Commonwealth v. Lloyd, No. 693 Harrisburg, 1986, J. 58036/87.

      . The correct date of receipt of custody of appellant by the Commonwealth was February 13, 1984.

      . The United States adopted the Interstate Agreement on December 9, 1970, effective March 9, 1971, 18 U.S.C.App.

      . The Uniform Extradition Act, 42 Pa.C.S.A. § 9121 et seq., is inapplicable to sentenced prisoners. Commonwealth v. Alexander, 318 Pa. Super. 344, 464 A.2d 1376 (1983); Commonwealth ex rel. Coleman v. Cuyler, 261 Pa.Super. 274, 396 A.2d 394 (1978). No other distinction between the two acts would compel a different result under the Extradition Act. Both the Act and the Agreement provide substantially the same protection even though procedurally they differ, id., nor does appellant make a challenge in this regard.

      . See Commonwealth v. Fooks, 345 Pa.Super. 145, 497 A.2d 1346 (1985) (trial commences for purpose of Rule 1100 when jury is empaneled or voir dire has begun).

      . See supra note 4.

      . The suggested inquiry reads as follows:
      (1) That the defendant understands that he has the right to be represented by counsel, and the right to have free counsel appointed if he is indigent.
      (2) That the defendant understands the nature of the charges against him and the elements of each of those charges.
      (3) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
      (4) That the defendant understands that if he waives the right to counsel he will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules.
      (5) That the defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently.
      (6) That the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected to, or otherwise timely raised by the defendant, these errors may be lost permanently.
      Comment following Pa.R.Crim.P. 318.


author: BECK, Judge: BROSKY, Judge,

text:
    535 A.2d 1163
    Patricia FISHER, Appellee, v. Alfred FISHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1987.
    Filed Jan. 15, 1988.

      Mark Momjian, Philadelphia, for appellant.
    Wallace Walker, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BROSKY and BECK, JJ.
   BECK, Judge:

Appellant father appeals an order of the Court of Common Pleas of Philadelphia County, ordering both parent parties to share equally in the legal and physical custody of their son, Justin. He alleges that the hearing judge abused his discretion by (1) reasoning that since neither parent met the burden of proving superiority, case law requires both parents to share equally in the legal and physical custody of their child; (2) failing to consider certain criteria in support of the father’s contention that he be granted primary physical custody; and (3) failing to consider the impact that annually alternating school systems and schedules would have on the child. The father specifically alleges abuse of discretion in the award of physical custody and does not contest the award of shared legal custody.

Father and mother were married but separated at the time of Justin’s birth in October 1977, and then reconciled and lived together from December 1979 until their final separation in October 1981. The mother had sole custody of Justin in St. Louis from his birth until age two when his parents reconciled. Justin then lived together with his parents in Philadelphia until their separation. From October 1981 until February 1983, he lived in Philadelphia. During this period, he lived with his mother except for one to two months with his father. As of February 1983, he continued to live with his mother in St. Louis, and attended kindergarten there. From June 1983 until July 1987, Justin lived with his father in Philadelphia and attended school in Philadelphia. He spent the summers of 1984 and 1985 with his mother in St. Louis.

In July 1986, after father refused to send Justin to her for the coming school year, mother filed a petition for confirmation of custody. The hearing judge found that both parties are loving, caring parents, interested in selflessly promoting Justin’s best interests; both would provide suitable housing and educational arrangements for Justin, and both offered Justin environments with equal advantages. The judge then ordered that shared legal and physical custody of Justin be alternated on a yearly basis, thus giving custody for the current 1987-1988 year to the mother.

Our scope of review in child custody cases is broad but we may only interfere with the decisions of the hearing judge where there has been a gross abuse of discretion. Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987). We are empowered to determine whether the hearing court’s factual findings are supported by competent evidence and whether the court’s conclusions are reasonable in light of its factual findings. Id. Moreover, it is axiomatic that in any child custody case, the paramount consideration is the best interest and welfare of the child. All other considerations are deemed subordinate to the child’s physical, intellectual, moral and spiritual well-being. Michael T.L. v. Marilyn J.L., 363 Pa.Super. 42, 525 A.2d 414 (1987); Beers v. Beers, 342 Pa.Super. 465, 493 A.2d 116 (1985).

Although the factual findings which the hearing judge did make are supported by competent evidence, we find the hearing judge’s conclusion, that physical custody be equally shared by means of annual shifts in physical custody, is unreasonable in light of the factual findings. The hearing judge’s conclusion represents a gross abuse of discretion in two respects. It is based on an erroneous conclusion of law, and it is not based on a finding of Justin’s best interests. Accordingly, we vacate the portion of the custody order concerning physical custody.

At the outset, we note that there is no previous custody order. Prior to the existence of a custody order, the parent parties stand on an equal footing and the only burden carried by either of them is to establish what is in the best interest of the child. Michael T.L. v. Marilyn J.L.

Appellant first argues that the hearing judge abused his discretion by reaching an erroneous conclusion of law. We agree. In the instant case, the hearing judge reasoned that because he found the relative merits of the parents to be equal, he was mandated by Murphey v. Hatala, 350 Pa.Super. 433, 504 A.2d 917 (1986) to order equally shared legal and physical custody. Murphey articulates the proposition that the hearing judge must award custody to the party who has proven his superiority by a preponderance of the evidence. Also, Murphey holds that shared physical and legal custody is appropriate in that case because it was in the child’s best interests, where, among many factors, both parents lived in geographical proximity to each other so that despite bi-weekly shifts of physical custody, the child would go to the same school. Although Murphey favors shared custody where the relative merits of both parents are equal, “[sjhared custody need not encompass shared ‘physical’ custody; it need constitute merely shared ‘legal’ custody.” In re Wesley, J.K., 299 Pa.Super. 504, 512 n. 8, 445 A.2d 1243, 1247 n. 8 (1982). Moreover, the factors in Murphey are not present in the instant case. Therefore the hearing judge erred in basing his conclusion on Murphey.

We also hold that the hearing judge abused his discretion by making no finding as to Justin’s best interests. An award of shared physical custody is only proper when it is in the best interests of the child. 23 Pa.Cons.Stat.Ann. § 5304 (Purdon supp. 1987).

Appellant then asserts two contentions which both affect the determination of Justin’s best interests. The father first argues that the hearing judge abused his discretion by failing to consider criteria in support of the father’s contention that he be granted primary physical custody of Justin. The court disregarded the father’s status as primary caretaker and nurturing parent since June 1983. Where natural parents are both fit, the hearing judge must give positive consideration to the parent who has been the primary caretaker. Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 448 A.2d 1113 (1983). The court also failed to take into account the effect of a change in status quo and evidence that Justin has been thriving in a stable environment while in Philadelphia with his father since June 1983. Courts have long recognized the importance of a continuing and stable custodial relationship with a parent which satisfactorily serves the child’s needs. Harner v. Harner, 330 Pa.Super. 343, 479 A.2d 583 (1984), see Gerber v. Gerber, 337 Pa.Super. 580, 487 A.2d 413 (1985). These criteria favor a finding that it is in Justin’s best interest that the father in Philadelphia should have physical custody during the school terms.

One of the criteria which the father argues that the judge failed to consider is Justin’s preference. The hearing judge makes no reference to Justin’s preference although he did conduct an in camera interview in the presence of counsel for both parents. We note that father also argues that the judge also abused his discretion by not permitting the transcript of Justin’s testimony to be reproduced. This argument is meritless because the transcript constitutes part of the original record and is available for our review. When a hearing judge interviews a child in a custody case, the testimony must be transcribed and made a part of the record. Gerald G., Jr. v. Theresa G., 284 Pa.Super. 498, 426 A.2d 157 (1981). The record shows that Justin would like to be with both his parents and does not indicate a clear preference for either parent. Although the opinion does not refer to Justin’s testimony, it is clear that the judge considered it and did not abuse his discretion in this regard.

Father raises as a separate argument that the hearing judge abused his discretion by failing to consider the impact that different school systems and schedules would have on Justin if he attends school on an annually alternating basis between Philadelphia and St. Louis. This contention is an expansion of father’s argument favoring Justin’s need for stability. Our Court has repeatedly recognized that attending school in the same school system is generally in the best interests of the child, because alternating schools result in psychological and educational problems posed by different schools. E.g. Smith v. Smith, 337 Pa.Super. 9, 486 A.2d 453 (1984), Ellingsen v. Magsamen, 337 Pa.Super. 14, 486 A.2d 456 (1984). A child knowing that he will alternate schools will be less likely to establish strong friendships with other children, to participate in school activities and sports, and to gain a meaningful and useful education.

Although neither the initial court opinion or supplemental opinion make any finding as to Justin’s best interests, the record in the instant case clearly discloses Justin’s best interests. Moreover, the record reveals the parties’ opinion about one aspect of Justin’s best interests. The father’s uncontradicted testimony establishes that both parents wished to provide Justin with some stability and that they “obviously could not move him back and forth every year.” N.T. Oct. 20, 1986 at 74. In order to maintain the status quo and provide stability and continuity in the life of this young school-aged child, wé hold that Justin’s best interests will be served by returning him to the primary physical custody of his father. The mother, who is also a loving and fit parent, should be allowed partial physical custody of Justin for the maximum amount of non-school days feasible.

The child is presently in school in St. Louis. The court’s order upon remand should permit the child to remain in school in St. Louis until there is a natural break in the school term, such as the end of the fall semester.

Order affirmed as to shared legal custody. Order reversed as to shared physical custody, and case remanded for proceedings, including establishment of a custody schedule consistent with this opinion. Jurisdiction relinquished.

BROSKY, J., files concurring opinion.

BROSKY, Judge,

concurring:

I concur in the result reached by the majority yet I feel compelled to write separately on the issue of our scope of review. There appears to be confusion among the cases in this regard. In custody matters we are supposedly granted review of “the broadest type” yet it has also been said that we cannot interfere with the custody decision of the trial court absent a gross abuse of discretion. In fact, the majority states this at p. 1165 of its opinion. To me the two statements seem contradictory and mutually exclusive of one another. However, I believe a workable statement of our scope of review can be gleaned from the relevant Supreme Court opinions on this matter.

A very astute articulation of the scope of review in custody cases was made by now Chief Justice Nix in Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-295, 368 A.2d 635, 637 (1977); there it was said:

It is now beyond dispute that the sole issue to be decided in a custody proceeding between contending parents is the best interest of the child ... In order to insure such a focus, our law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type. Thus, an appellate court is not bound by deductions and inferences made by a trial court from the facts found, ... nor must a reviewing court accept a finding which has no competent evidence to support it. (citations omitted).

This statement appears to recognize a considerably broader scope of review in custody cases than is commonly enjoyed by appellate courts with respect to other matters. However, even this statement does not condone or authorize appellate courts to usurp the traditional function of a hearing court which is to make factual findings based upon the presentation of evidence. This key function remains within the province of the hearing court. But in a custody case the hearing court is charged with a duty to do more than make factual findings. It is also charged with a duty to order an appropriate custody arrangement in light of the factual findings made. It is this aspect, the ordered custody arrangement, which was apparently meant to be subjected to broad appellate review. This intent can be gleaned from the above quoted passage from Carson when considered with the language, quoted by Chief Justice Nix, which appeared immediately after that passage in Carson:

... [T]his broader power of review was never intended to mean that an appellate court is free to nullify the fact-finding function of the hearing judge. It is a principle which runs through all our cases that the credibility of witnesses and the weight to be given to their testimony by reason of their character, intelligence, and knowledge of the subject can best be determined by the judge before whom they appear.

Consequently, it appears to me that Carson instructs appellate courts to accept the factual determinations of the hearing court, unless unsupported by the evidence or made contrary to the weight of the evidence, a situation tantamount to an abuse of discretion on the hearing court’s part, but to scrutinize closely the hearing court’s custody determination which was made in light of the factual findings. Undoubtedly, it was meant that deference be given to a hearing court’s custody determination; and certainly with regard to matters of credibility of witnesses and resolution of factual matters and disputes, the hearing court is in a superior position to make such findings; but it also appears that custody matters were considered so important that an appellate court be given broad review rights to ensure that the child’s best interest would be served by an appropriate custody arrangement.

This delineation, that the appellate court cannot substitute its own factual findings for those of the hearing court, or otherwise usurp the hearing court’s role absent an abuse of discretion on the hearing court’s part, while still possessing a broad scope of review of the custody determination, is further shown in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). There Justice Papadakos, writing for our Supreme Court, indicated, while once again quoting from Carson, supra, that the appellate court was to remain within the proper bounds of its review and base a decision “upon its own independent deductions and inferences from the facts as found by the hearing judge." 478 A.2d at 806 (emphasis in original). The Robinson opinion went on to state:

----Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings ... and, thus, represent a gross abuse of discretion, ...

478 A.2d at 806, (citations omitted).

This passage indicates that the abuse of discretion standard of review relates to our review of the trial court’s factual conclusions, which we are bound by unless unsupported by or contrary to the evidence of record. However, this passage does not indicate that, absent a gross abuse of discretion, we are bound by the hearing court’s custody determination. If this were the case, it would appear, there could be no appellate review of “the broadest type” as indicated in Carson.

The importance of this distinction is illustrated in cases such as the present one. The majority does not take exception to the factual findings or factual conclusions of the hearing court yet they conclude that the custody determination itself does not serve the child’s best interests, because it calls for yearly shifts of residence, for schooling purposes, between St. Louis and Philadelphia. They contend, and I agree, that it is generally in the child’s best interests to stay in the same school system.

However, I cannot agree that the ordered custody arrangement represents a gross abuse of discretion on the part of the hearing court. The hearing court was faced with a difficult decision between ordering the child to remain in one school system, which would require the child to remain in the physical custody of one parent for a great majority of the time, a situation exacerbated by the great distance between the mother’s and father’s residences; and, alternating physical custody of the child for a full school year between the parents on a year to year basis. Both arrangements would have advantages and disadvantages but neither seems to me to be so lacking in consideration or potentially harmful to the child to be equivalent to a gross abuse of discretion. To so hold just depreciates the meaning of that statement. Yet, apparently both parents agree that the better custody arrangement is one which provides some “stability”. To this extent I believe the majority’s custody arrangement better serves the child’s interests than the one ordered by the trial court. As I do not read the relevant caselaw to require us to find a gross abuse of discretion on the hearing court’s part as to its custody determination prior to rejecting its custody order, I concur in the result reached by the majority.

      . When the parties divorced in 1984, they entered into a property settlement agreement which incorporated a letter of understanding about custody of Justin. According to the letter of understanding, the mother, was to have custody of Justin as of the 1987 school year until the summer before his entry into high school when Justin’s preference would determine his future custody. The agreement and letter of understanding were not incorporated in any court order.

      . At oral argument the father through his attorney volunteered to pay the child’s airfare and other expenses so that Justin could visit certain weekends with his mother in St. Louis.


author: MONTEMURO, Judge:

text:
    535 A.2d 1168
    George K. MOY and Carol Rosen Moy, His wife On Behalf of Themselves and all Others Similarly Situated, Appellants, v. SCHREIBER DEED SECURITY CO., A Pennsylvania Corporation, and Marvin Schreiber, An Individual, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1987.
    Filed Jan. 15, 1988.

      Barbara Cymerman, Pittsburgh, for appellants.
    James A. Buddie, Pittsburgh, for Schreiber, appellee.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This appeal concerns a class action which was originally filed on February 3, 1987, by the appellants, George K. Moy and Carol Rosen Moy. Appellants named as defendants the Schreiber Deed Security Co. (S.D.S.C.), a Pennsylvania corporation, and Marvin Schreiber, president of S.D.S.C. In their complaint, appellants averred that S.D.S.C. had charged them the following fees in conjunction with a residential house closing:

1101. Settlement or closing fee to Chreiber [sic] Deed Security Company ... $50.00
1108. Title insurance to Chreiber [sic] Deed Security Company ... $633.00
1112. Disbursement Char Chreiber [sic] Deed Security Company ... $10.00

R.R. at 5a. Appellants averred that the ten ($10.00) dollar disbursement fee had not been included in the estimate of their closing costs. R.R. at 6a. Appellants further averred that S.D.S.C. had violated a provision of the Title Insurance Companies Act, 40 Pa.S.A. § 910-1(5), by charging a settlement fee and a disbursement fee in addition to a flat fee for title insurance. Appellants also asserted a cause of action under The Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa.S.A. § 201-1 to 201-9.2, on the grounds that S.D.S.C.’s policy of charging purchasers of title insurance a settlement fee and a disbursement fee was violative of the Title Insurance Companies Act and the Unfair Insurance Practices Act and was, therefore, an unfair and deceptive trade practice. R.R. at 12a.

Appellants’ complaint contained the following averment:

4. Marvin Schreiber acted on his own behalf and as President or other corporate officer of Schreiber Deed Security Co.

Trial Court Op. at 1. Appellee, Marvin Schreiber, filed preliminary objections seeking a dismissal of the complaint as to him. Thereafter, on April 7, 1987, the appellants exercised their right to file an amended complaint pursuant to Pa.R.C.P. 1028(c). The only change contained in the amended complaint was in paragraph four (cited above) of the complaint:

4. At all times material hereto, Defendant Marvin Schreiber acted on his own behalf and as President or other corporate officer of Schreiber Deed Security Co., in actively participating in the wrongful injury producing conduct, by setting policies and/or charges and/or fees complained of by plaintiffs as hereinafter set forth.

Trial Court Op. at 2. On April 15, 1987, appellee filed preliminary objections to appellant’s amended complaint for failure to comply with Pa.R.C.P. 1019(a) and for failure to state a cause of action. The trial court entered an order on May 8, 1987 sustaining the preliminary objections without leave to amend.

The issue which we must determine in the instant case is whether the trial court erred in determining that appellants have failed to state a cause of action against the appellee, a corporate officer, in his personal capacity. Initially, we note the language of our supreme court in Gekas v. Shapp, 469 Pa. 1, 5-6, 364 A.2d 691, 693 (1976):

A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deductible therefrom, but not conclusions of law. Buchanan vs. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974); Borden v. Baldwin, 444 Pa. 577, 281 A.2d 892 (1971); Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). In order to sustain the demurrer, it is essential that plaintiffs complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Papieves v. Lawrence, supra; Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969). If there is any doubt, this should be resolved in favor of overruling the demurrer____

In Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983), the Pennsylvania Supreme Court held that a cause of action had been stated against three corporate officers on the theory that they personally participated in alleged tortious acts committed by two corporations. In Wicks, the appellants had purchased a home in a development known as Monroe Acres. Appellants sought to recover damages for personal injuries and property damage they claimed resulted from serious water drainage problems in Monroe Acres. Appellants alleged in their complaint that the corporate officers had been negligent in failing to foresee the potential drainage problems at Monroe Acres and in failing to provide adequate drainage ditches. The Supreme Court in Wicks discussed the participation theory of corporate officer liability as follows:

The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such a tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or participated, or cooperated therein ... Liability under this theory attaches only where the corporate officer is an actor who participates in the wrongful acts. Therefore, corporate officers may be held liable for misfeasance ... Nevertheless, corporate officers and directors may not be liable for mere nonfeasance.

Wicks, supra, 503 Pa. at 621-622, 470 A.2d at 90 (citations omitted). In Wicks, the court determined that the complaint was sufficient to withstand a demurrer, because it averred in general terms that the corporate officers knew that the terrain of Monroe Acres would lead to drainage problems and that they had allowed the home construction and sale to proceed despite this knowledge. “Under Pa.R. C.P. 1019(a) the plaintiff need only plead ultimate facts; evidentiary, facts need not be set forth in the complaint ... This complaint, while bare of evidentiary facts, when read as a whole, does state ultimate facts on which the appellants depend to show Miller, Cook and Zollers’ liability, in the most general terms.” Id. (citations omitted) (emphasis added).

We find that the instant case is indistinguishable from Wicks and therefore, we reverse the trial court’s order sustaining appellee’s preliminary objections. Based upon our reading of the trial court’s opinion in this case, it appears that the trial court believed that appellants had failed to state a cause of action because appellants had not pleaded more specific facts concerning the participation of the appellee in the injury-producing conduct. Trial Court Op. at 3-4. We do not agree. The injury-producing conduct in this case consisted of a company policy of charging a settlement fee and a disbursement fee when selling a policy of title insurance. Although appellants did not include facts concerning the time, place, or manner in which the appellee allegedly established this company policy, the appellants did allege the ultimate fact that appellee set this fee policy himself. As a result, appellants should not have been put out of court. In reaching our conclusion in this case, we are cognizant of the strict standard that has been established for sustaining a demurrer.

The law of Pennsylvania has long recognized that a corporate officer who participates in wrongful, injury-producing conduct can be personally liable. Chester-Cambridge Bank & Trust Co. v. Rhodes, 346 Pa. 427, 31 A.2d 128 (1943); Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247 (1977). See also Shonberger v. Oswell, 365 Pa.Super. 481, 530 A.2d 112 (1987); Bank of Landisburg v. Burruss, 362 Pa.Super. 317, 524 A.2d 896 (1987). In Donsco, Inc. v. Casper Corp., 587 F.2d 602 (3d Cir.1978), the court recognized that a corporate president could be held individually liable under the participation theory for acts of unfair competition which he personally committed. If there is positive proof that the appellee in the case at bar has personally engaged in conduct which constitutes an unfair and deceptive trade practice, it is possible that he may properly be held liable for his actions under the Unfair Trade Practices and Consumer Protection Law. See Kaites v. Dept. of Environmental Resources, 108 Pa.Commw. 267, 529 A.2d 1148 (1987) (Public interest requires specific evidence of acts of intentional neglect or misconduct before imposing individual liability on corporate officer for abating a public nuisance under The Clean Streams Law or the Coal Refuse Disposal Control Act.)

Accordingly, we reverse the order of the trial court and remand for further proceedings. Panel jurisdiction is relinquished, jurisdiction of the court is retained.

      . 40 Pa.S.A. § 910-1(5) is a provision contained in the definitional section of the Title Insurance Companies Act which provides as follows:
      “Fee” for title insurance means and includes the premium, the examination and settlement or closing fees, and every other charge, whether denominated premium or otherwise, made by a title insurance company, agent of the title insurance company or an approved attorney of a title insurance company, or any of them, to an insured or to an applicant for insurance, for any policy or contract for the issuance of, or an application for any class or kind of, title insurance; but the term "fee” shall not include any charges paid by an insured or by an applicant for insurance, for any policy or contract, to an attorney at law acting as an independent contractor and retained by such attorney at law, whether or not he is acting as an agent of or an approved attorney of a title insurance company, or any charges made for special services not constituting title insurance, even though performed in connection with a title insurance policy or contract.

      . 40 Pa.S.A. § 1171.1 to 1171.15.

      . The Title Insurance Companies Act specifically provides that the business of title insurance is subject to the provisions of the Unfair Insurance Practices Act. 40 Pa.S.A. § 910-54 (10). Although we express no opinion on the merits of this case before us, we do note that this court has recently determined that the Unfair Insurance Practices Act does not "represent the sole and exclusive source of statutory redress of alleged unfair or deceptive acts of insurers and their agents. Specifically, these acts may be redressed in the courts of our Commonwealth under the Unfair Trade Practices and Consumer Protection Law as well as by administrative hearing under the Unfair Insurance Practices Act." Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 221, 529 A.2d 471, 479 (1987). See also Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986).

      . Pa.R.C.P. 1028(c) provides in pertinent part that “[a] party may file an amended pleading as of course within the (10) days after service of a copy of preliminary objections ..."

      . Based upon our disposition of appellants’ first issue, it is unnecessary for us to address appellant’s contention that the trial court erred in dismissing appellants’ amended complaint without leave to amend.

      . In Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983), the trial court had sustained appellees’ demurrers, holding that no cause of action had been stated against the corporate officers in their personal capacities. This court affirmed the dismissal.

      . We note that it may be that a summary judgment may become appropriate later in the instant case if undisputed facts establish that the appellees did not participate in setting the alleged unfair fee policy of this corporation. Wicks, supra, 503 Pa. at 623, 470 A.2d at 91 (1983).

      . We emphasize that we express no opinion on the merits of the instant case. However, as with the claim asserted against the appellee under the Unfair Trade Practices and Consumer Protection Act, it may be that, upon proper proof of participation, appellants may be able to hold the appellee liable under the Title Insurance Companies Act. This is assuming, of course, that the Title Insurance Companies Act provides grounds for such a cause of action.