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decided: March 16, 1979.


No. 759 April Term, 1978, Appeal from the Orders of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 77-24656.


Alan L. Carb, Pittsburgh, and with him Gary E. Stout, Pittsburgh, for appellants.

Harry W. Miller, Robert N. Gentile, Pittsburgh, for appellee.

Price, Hester and Watkins, JJ. Hester, J., files a concurring and dissenting statement.

Author: Price

[ 264 Pa. Super. Page 241]

This case presents the questions of whether an automobile accident victim, in suing the tort-feasor, may, consistent with Pennsylvania's No-fault Motor Vehicle Insurance Act,*fn1 plead, prove, and recover items of economic detriment compensable under the Act, and whether the Act serves to abolish causes of action for loss of consortium.

Appellants filed a complaint in trespass on October 24, 1977, alleging appellee's negligence in an automobile accident which occurred on December 12, 1976, which involved a car driven by appellant John Zagari, and one driven by appellee. Appellant Christie Zagari was not present at the time of the accident. The complaint alleged in paragraph 8, subparagraphs (a), (b), (g), and (h), that appellant John Zagari sustained the following damages: (a) past and future medical expenses in excess of $750; (b) the necessity of purchasing a neck brace and home traction machine; (g) anxiety and embarrassment in repeating a year of law school due to poor grades suffered subsequent to the accident; and (h) financial setbacks in his contracting business due to appellant's inability to personally take part in the construction work.

[ 264 Pa. Super. Page 242]

In another count of the complaint, appellant Christie Zagari, wife of John, alleged in paragraph 11, subparagraphs (a), (b), and (c), that as a direct and proximate result of appellee's negligence and recklessness, she sustained the following damages: (a) loss of consortium; (b) emotional distress and inconvenience; and (c) loss of the pecuniary value of her husband's services for the period of time he was recuperating from the accident.

Appellee filed preliminary objections and, in the alternative, a motion to strike, in which he objected to the above mentioned paragraphs of appellants' complaint, and contended that such damages were not compensable under the No-fault Act. The motion was granted in an order by Judge Silvestri dated December 8, 1977, and paragraph 8, subparagraphs (a), (b), (g), and (h), and paragraph 11, subparagraphs (a), (b), and (c) of the appellants' complaint were stricken. Judge Silvestri issued an amended order dated December 20, 1977, certifying that the action involved a controlling question of law as to which there was a substantial ground for difference of opinion and that an immediate appeal "may materially advance the ultimate termination of this matter."*fn2

Appellants subsequently filed a petition for permission to appeal with this court, and such petition was denied per curiam in an order dated January 12, 1978. Appellants thereafter filed a Petition for Allowance of Appeal with our state supreme court, seeking review of our order of January 12. In an order dated March 2, 1978, the supreme court granted appellants' petition and instructed this court to entertain and hear this appeal.

In pertinent part, Section 301 of the No-fault Act (40 P.S. § 1009.301) provides that:

"(a) Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the

[ 264 Pa. Super. Page 243]

    maintenance or use of a motor vehicle, except that; . . .

(5) A person remains liable for damages for non-economic detriment if the accident results in:

(A) death or serious and permanent injury; or

(B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750) . . .; or

(C) medically determinable physical or mental impairment which prevents the victim from performing all or substantially all of the material acts and duties which constitute his usual and customary daily activities and which continues for more than sixty consecutive days; or

(D) injury which in whole or in part consists of cosmetic disfigurement which is permanent, irreparable and severe . . ."

Appellants contend that once a plaintiff meets the threshold requirements of section 301(a)(5), all economic and non-economic damages may be pleaded regardless of any prior compensation by a plaintiff's no-fault insurance obligor.*fn3 With this contention we cannot agree.

[ 264 Pa. Super. Page 244]

Section 301(a)(5) specifically provides that damages for non-economic detriment are recoverable if the threshold requirements are met. "Non-economic detriment" means "pain, suffering, inconvenience, physical impairment, and other non-pecuniary damage recoverable under the tort law applicable to injury arising out of the maintenance or use of a motor vehicle."*fn4 Damage items such as medical expenses,*fn5 financial setbacks in one's business, and loss of pecuniary value of a spouse's services are not "non-economic detriment," and therefore do not come within the ambit of section 301(a)(5). Indeed, recovery for these damage items is provided for in the Act itself.*fn6 Appellants, nevertheless, would have us hold that such damages are recoverable in a tort action once the threshold requirements of section 301(a)(5) are met. In effect, we are being asked to deem the meeting of the threshold requirements as a signal to open the floodgates of pleadings, thereby allowing all losses, even those already compensated via no-fault insurance, to be pleaded and proved. We cannot hold that such a practice is condoned under § 1009.301. To the contrary, except for those situations coming under § 1009.301(a)(4) which deals with losses not compensated under the Act due to limitations imposed by the Act,*fn7 the legislature made it abundantly clear that economic losses were not to be recoverable via a tort action in the no-fault context. To allow these economic

[ 264 Pa. Super. Page 245]

    losses to be pleaded and proved, would be contrary to the purpose of the act, encourage double recovery, and, at the very least, be a source of confusion for the fact-finder.

Appellants contend that the best indicators of the monetary worth of claims for pain and suffering are medical expenses and work loss, and that without this data, "a Plaintiff's pleading and presentation of damages at trial will be empty shells lacking crucial information." (Appellants' brief at 10). We find this contention to be absurd. One cannot discern how much pain and suffering was endured by considering how much money changed hands between the injured party and those who treated him. It is the nature and extent of the treatment required ...

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