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SALVATORE NAPOLI v. ANTHONY F. BIANCO (05/10/85)

filed: May 10, 1985.

SALVATORE NAPOLI, JR., AND ANGELA NAPOLI, HIS WIFE, APPELLANTS,
v.
ANTHONY F. BIANCO



No. 00008 Pitts., 1983, Appeal from the Judgment entered February 28, 1983, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 77-28936.

COUNSEL

Irving M. Portnoy, Pittsburgh, for appellants.

Dennis S. Mulvihill, Pittsburgh, for appellee.

Brosky, Watkins and Hester, JJ.

Author: Watkins

[ 342 Pa. Super. Page 236]

This is an appeal from a judgment precluding the appellants from raising an issue in their brief and argument.

Appellants instituted an action in trespass seeking recovery for non-economic detriment, as defined by the Pennsylvania

[ 342 Pa. Super. Page 237]

No-Fault Motor Vehicle Act, arising out of personal injuries sustained by husband-appellant in a motor vehicle collision. Medical expenses in the amount of $1,253.14, of which $975.00 was for chiropractic treatment, were alleged.

In determining whether the husband-appellant had incurred costs for "medical and dental services" in excess of the monetary threshold embodied in § 301(a)(5)(B) of the No-Fault Act, the appellants were precluded from submitting bills incurred for husband-appellant's chiropractic treatment pursuant to the court's decision in Strunack v. Ecker, 283 Pa. Superior Ct. 585, 424 A.2d 1355 (1981). In Strunack, the court held that § 1009.301(a)(5)(B) of the No-Fault Act should not be construed to allow inclusion of chiropractic expenses in calculating the amount of medical expenses which could be used to satisfy the monetary threshold of the No-Fault Act. As a result, appellants were unable to satisfy the monetary threshold provision of the No-Fault Act. Appellants also alleged at trial that the husband-appellant had suffered a serious and permanent injury as determined by the husband-appellant's chiropractor in an attempt to satisfy the verbal threshold of the No-Fault Act.

At the hearing of the non-jury case, all factual issues were resolved by stipulation of counsel. The sole issue raised was whether a chiropractor could render an opinion that a patient suffered a serious and permanent injury of the type which would satisfy the verbal threshold requirements of the No-Fault Act. The trial court ruled that a chiropractor was qualified to render an opinion of the type which was required by the No-Fault Act; however, it ruled as a matter of law that the husband-appellant's injuries were not so "serious and permanent" as to qualify as an exception to the tort immunity provisions of the No-Fault Act. Accordingly, the trial court entered a verdict for the defendant because the plaintiffs-appellants had failed to meet any of the thresholds for maintaining a third party action.

[ 342 Pa. Super. Page 238]

Appellants filed timely exceptions to the non-jury verdict. The appellants in their exceptions asserted that the trial court erred as a matter of fact and law in finding that the injuries suffered by the husband-appellant were not serious and permanent. The appellants in their brief and oral argument neither briefed nor argued the ...


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