text:
    442 A.2d 324
    Richard L. BROWN, Isabelle A. Brown, James F. Haberkorn, and Mary Elizabeth Haberkorn, Appellants, v. Paul A. COONEY, Charles M. Cooney and James R. Cooney, trading and doing business as Cooney Bros. Coal Co., a partnership, and Adams Township.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1981.
    Filed March 5, 1982.

      Edward F. Peduzzi, Ebensburg, for appellants.
    John A. Metz, Jr., Pittsburgh, for Cooney, etc., appellees.
    Mark Gregg, Johnstown, for Adams Tp., appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   SHERTZ, Judge:

This is an appeal from the order of the court below granting summary judgment to Appellee defendants. The trial court concluded that Appellants’ complaint was barred by res judicata. On appeal, Appellants contend that their complaint was not barred by res judicata and was timely filed within the statute of limitations. We disagree and accordingly affirm the order of the court below.

The pertinent facts are as follows. Appellants filed a complaint in equity against Appellees on November 24,1975. Therein Appellants averred therein that Appellee Township had vacated Township Road 309 which passed between properties owned by Appellants. Appellants further claimed that they acquired title to the road and that during the period from July to October 1974, without permission of the Township or Appellants, Cooney Bros, had covered the road with fill rendering it useless. Appellants also claimed that some of the fill covered portions of Appellants’ adjacent properties. Appellants sought to compel Appellees to remove the fill, to restore the road and for the use of the road on a wheelage or tonnage basis. Appellee Township and Appellee Cooney Bros, each demurred, claiming that the road was not vacated by the Township. The Chancellor, concluding that the road had not been vacated, entered an order sustaining the demurrers and dismissing the complaint. Appellants took no action to challenge the propriety of said order.

On August 24, 1979, Appellants filed a complaint in trespass; it is this complaint which is the subject of this appeal. Appellants reiterate their previous claim that the road was vacated by the Township and that Appellee Cooney Bros, covered the road and adjacent property with fill. Additionally, Appellants claim that:

The defendants, Cooney Bros., also cut through and across a certain portion of plaintiffs’ land, constructing a new road thereon, by and with the consent and permission of defendant, Adams Township, but without the consent and permission of the plaintiffs.

R.R. at 34a. Appellants concede that Cooney Bros, proceeded with permission from the Township and that there is no record that the road was deleted from the Township road system.

Appellee Township filed a motion for summary judgment on the ground that the action was barred by res judicata and the applicable statute of limitations. Appellee Cooney Bros, filed a motion on the ground that the action was barred by the applicable statute of limitations.

Since the statute of limitations question was the only one raised in both motions for summary judgment, we consider it first. Appellants do not dispute that they failed to bring the present action within the two-year limitation period prescribed for an action for waste or trespass of real property, 42 Pa.Cons.Stat.Ann. § 5524(4) (Purdon Pamphlet 1981), or within the one year extension provided for actions pending when a statute of limitations is reduced. See Section 25(a) and (b) of the Act of July 9, 1976, P.L. 586, No. 142. Rather Appellants argue that the action was properly brought pursuant to 42 Pa.Cons.Stat.Ann. § 5535 (Purdon Pamphlet 1981) which provides as follows:

(a) Termination of prior matter.—
(1) If a civil action or proceeding is timely commenced and is terminated, a party, or his successor in interest, may, notwithstanding any other provision of this subchapter, commence a new action or proceeding upon the same cause of action within one year after the termination and any other party may interpose any defense or claim which might have been interposed in the original action or proceeding.
(2) Paragraph (1) does not apply to:
(i) An action to recover damages for injury to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.
(ii) An action or proceeding terminated by a voluntary non-suit, a discontinuance, a dismissal for neglgect to prosecute the action or proceeding, or a final judgment upon the merits.

Appellants contend that the Chancellor’s order sustaining the demurrer and dismissing Appellants’ initial complaint was not a “final judgment upon the merits” within the meaning of Section 5535. This contention is unsupported by case law or other relevant authority. Dismissal of an action for failure to state a claim is a final judgment on the merits. See e.g. Coggins v. Carpenter, 468 F.Supp. 270 (E.D.Pa. 1979). Where the facts alleged by the plaintiff present the issue on which the court holds that no cause of action exists, determination of that issue is “on the merits.” 50 C.J.S. Judgments § 633, p. 67 (1947).

Restatement, Judgments § 49, Comment a (1942) summarizes the distinction between a judgment on the merits and a judgment which is not on the merits:

“A judgment for the defendant is not on the merits where it is based merely on rules of procedure rather than on rules of substantive law. If the judgment determines that the plaintiff has no cause of action, it is on the merits; but if it determines only that the plaintiff is not entitled to recover in the particular action, it is not on the merits. If the defendant, whether on demurrer, motion, verdict or otherwise, obtains judgment in his favor on a ground not involving the substance of the plaintiffs cause of action, the cause of action is not extinguished thereby. This is the case, for example, where the judgment is based on the lack of jurisdiction of the court over the defendant or over the subject of the action, on the plaintiff’s lack of capacity to sue, on the pendency of a prior action, on the misjoinder or nonjoinder of parties or on the misjoinder of causes of action.” (emphasis added)

The Chancellor’s order sustaining the demurrer to the complaint in equity was on the ground that Appellants had no cause of action inasmuch as “Adams Township was the legal holder of Road No. 309”. If Appellants wished to challenge the Chancellor’s order, an appeal could have been taken.

Having concluded that the the instant action was commenced beyond the period permitted by the applicable statute of limitations, we need not decide whether all or part of the second complaint is barred by res judicata or collateral estoppel.

Affirmed.

This case was decided prior to the expiration of SHERTZ, J.’s commission of office.

DiSALLE, J., did not participate in the consideration or review of this case.

      . Where the court sustains a demurrer and dismisses the complaint, such order is final and appealable. Brown v. Kleinfelter, 267 Pa.Super.Ct. 144, 406 A.2d 560 (1979).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    442 A.2d 326
    COMMONWEALTH of Pennsylvania v. Verge J. DALBON, Jr., and William M. Biringer, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed March 5, 1982.

      Sanford S. Finder, Washington, for appellants.
    W. Bertram Waychoff, Assistant District Attorney, Waynesburg, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   PER CURIAM:

This is a consolidated appeal from the judgment of sentence of the Court of Common Pleas of Greene County imposing a fine upon appellants for violation of the Motor Vehicle Code relating to the maximum gross weight of vehicles, 75 Pa.C.S. § 4941(a). Appellants were initially found guilty by their local district justice and ordered to pay a fine. They appealed their summary convictions to the court of common pleas which held a de novo trial on the charge. Appellants were again found guilty and directed to pay a fine by order of court dated November 16, 1979. This appeal followed.

The state of this record is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981). That decision made it clear that post-verdict motions are required to be filed in order to preserve issues for appeal after the pronouncement of guilt in de novo trials held upon an appeal from the decision of a district justice. Id. See also Pa.R.Crim.P. 1123 and recent comment thereto. In the present case, we note that there were no post-verdict motions filed. We cannot, however, find a waiver on this basis because the lower court never apprised appellant Picker on the record of his right to file post-verdict motions as is mandated that the court do under Pa.R.Crim.P. 1123(c). Commonwealth v. Koch, supra. See also Commonwealth v. Johnston, 292 Pa.Superior Ct. 224, 437 A.2d 16; Commonwealth v. Williams, 290 Pa.Superior Ct. 158, 434 A.2d 179 (1981). Cf. cases with respect to motions to modify sentence under Pa.R.Crim.P. 1405(c), Commonwealth v. Walton, 289 Pa. Superior Ct. 411, 433 A.2d 517 (1981); Commonwealth v. Koziel, 289 Pa.Superior Ct. 22, 432 A.2d 1031 (1981); Commonwealth v. Rush, 281 Pa.Superior Ct. 92, 421 A.2d 1163 (1980). In fact, the lower court, just as the lower courts in Koch, Williams and Johnston improperly pronounced verdict and sentence simultaneously through a written order made subsequent to the conclusion of the de novo trial. This effectively precluded the appellant from having the opportunity to file post-verdict motions which should properly be filed after the verdict is rendered, but before sentence, in this case a fine, is imposed. See Comment to Pa.R.Crim.P. 1123. The proper procedure for litigants to follow in this situation would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions. Appellant Picker, however, should not be faulted for his failure to do so because of the confusion which existed before Koch and the recent amendments to the Comments to Rules 67 and 1123 of the Rules of Criminal Procedure. See Commonwealth v. Johnston, supra, 292 Pa.Super. 227 n.3, 437 A.2d at 18, n.3.
Finally, we note that in this case the lower court, pursuant to Pa.R.App.P. 1925(b), issued an order directing appellant to file of record a concise statement of the matters complained of on appeal. Thus, the appellant did so and the lower court specifically addressed these issues in its opinion in support of an order pursuant to Pa.R. App.P. 1925(a). This, however helpful, is certainly not an adequate substitute for the filing of post-verdict motions because the latter ask the lower court to reconsider its decision in light of alleged errors whereas the former simply requires the court to justify and articulate the reasons for its decision. This distinction is crucial in light of the fact that one of the main purposes for requiring post-verdict motions is to give the lower court an opportunity to correct asserted errors at that early stage without necessitating the expenditure of time and judicial energy in taking a costly appeal to the appellate courts. See Commonwealth v. Koch, 288 Pa.Superior Ct. at 295, 431 A.2d at 1055. In Koch, we stated that “[t]he purpose of such motions is twofold: (1) to afford the trial court in the first instance, the opportunity to correct asserted trial errors; and (2) to clearly and narrowly frame issues for appellate review. Commonwealth v. Kinsey, 249 Pa.Superior Ct. 1, 375 A.2d 727 (1977).” While a concise statement of matters complained of on appeal may narrow the issues for review, it does not allow the lower court the opportunity to correct its errors because the notice of appeal has already been filed and the lower court is thereby divested of jurisdiction to act further on the case. Pa.R.App.P. 170(a).
For all of the foregoing reasons, the judgment of sentence is vacated and the case is remanded for the filing of post-verdict motions nunc pro tunc within 10 days of the filing of this order. Jurisdiction is relinquished.

Commonwealth v. Picker, 292 Pa.Super. 381, 439 A.2d 162 (1981).

For all of the foregoing reasons, the judgment of sentence is vacated and the case is remanded for the filing of post-verdict motions nunc pro tunc within 10 days of the filing of this order. Jurisdiction is relinquished.

      . Although appellants’ notices of appeal indicate that these are appeals from the lower court’s order, we will consider it as an appeal from the lower court’s judgment of sentence.

      . Appellants frame the question on appeal as follows:
      Under all the evidence, was it proper to convict the defendants of violation of the over-weight provisions of the Motor Vehicle Code?
      Brief for Appellants at 3.

      . The necessity of the action we take instantly is confirmed by that portion of the lower court’s opinion of President Judge Toothman sur Pa.R.A.P. 1925, wherein he said:
      We note at the outset that there were no post hearing motions filed before this Court, and of course, therefore no brief or other paper has been submitted to us to determine the basis upon which the appeal to the higher Court has been taken.
      Lower ct. op. at 2.


text:
    442 A.2d 328
    COMMONWEALTH of Pennsylvania v. Duke GALASSI, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed March 5, 1982.
    Vincent C. Murovich, Jr., Pittsburgh, for appellant.
    Kathryn L. Simpson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   PER CURIAM:

Duke Galassi, appellant, was tried before the Honorable Ralph Cappy and a jury in a trial commencing June 6, 1979 on two charges of violating the uniform firearms act, to wit: former convict not to own a firearm (18 Pa.C.S. § 6105) and firearms not to be carried without a license (18 Pa.C.S. § 6106). The jury returned a verdict of guilty on both charges and, following sentencing, this direct appeal was taken.

The day before the jury trial began, a suppression hearing was held before Judge Cappy and defense counsel, Vincent C. Murovich, Jr., Esquire, requested the court to sever the charges against him. The trial court refused the request for severance. The court said:

THE COURT: I don’t have any difficulty in entertaining the motion to amend or the oral argument in the nature of the motion to amend the pre-trial motion. However, I do understand the difficulty in these kinds of cases, Mr. Murovich. But the difficulty arises from, you know, two charges which are arising from a set of facts which are consistent—one set of facts, two charges. It seems—it may even seem to me to be redundant charges, although there is a specific additional penalty for former convict. The real question here is first, the jury has to reach the question did he possess the gun? And then secondly, if he did, the rest follows. Or secondly, if he is a convicted convict. I can’t grant your request to sever the two counts.

Suppression Hearing transcript at 44.

At the conclusion of the trial defendant filed a timely motion for new trial and in arrest of judgment, alleging inter alia, that “[t]he court erred in not severing the Counts.” This matter was considered by the lower court in its ten page opinion dated December 6,1979, which accompanied its order denying the motion for new trial and in arrest of judgment. In its opinion the court said:

This discussion is similarly determinative of defendant’s argument regarding severance of the two VUFA charges. Aside from the fact that this Court employed every means available to prevent any prejudice to the defendant from the consolidation of the two charges at trial, it is further noted that ‘Consolidation or separation of indictments is a matter within the sound discretion of the trial judge, whose decision will be reversed only for a clear abuse of discretion or in cases of clear prejudice and injustice to an accused. Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975) . . . (Citations omitted.)’ Consolidation will not be considered an abuse of discretion if the facts and elements of the charged offenses would be easily separable in the minds of the jury, if the facts of the commission of each crime would be admissible as evidence in a separate trial for the other, and if the facts of both transactions intertwined. Commonwealth v. Vickers, 260 Pa.Super. 46, 394 A.2d 1022 (1978).
Based on the reasons set forth above, the Motion for New Trial and In Arrest of Judgment shall be denied.

Lower ct. op. at 10.

Subsequently, at oral argument before our court Mr. Murovich requested and received permission to file a.supplemental brief in order to bring our attention to Commonwealth v. Carroll, 275 Pa.Super. 241, 418 A.2d 702 (1980). In Carroll we said:

We feel there is no question that appellant was prejudiced in this case. The crime of ‘Former convict not to own a firearm’, requires the Commonwealth to show a previous conviction for a violent crime. Thus, where these charges are brought with others, clearly the jury is exposed to the fact that this particular defendant had previously committed a violent crime.
Normally, in criminal trials, evidence of prior crimes committed by a particular defendant is not admissible and any reference to it constitutes reversible error. Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978). The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes, he was more likely to commit that crime for which he is being tried. Commonwealth v. Trowery, 211 Pa.Super. 171, 173, 235 A.2d 171, 172 (1967).
The prejudice here is a bit different. Clearly the introduction of the fact of appellant’s former conviction of a violent crime was required as an element of proof of the crime of ‘Former convict not to own a firearm.’
Appellant claims that because of the nature of the proof required in that crime, it could not be consolidated with other charges, since then the prejudice of the introduction of his former conviction would spread to all the charges. We agree. We feel to reach any other result would be inconsistent with general principles of evidence admissible in a criminal trial.
Normally, evidence that a particular defendant committed a prior crime is admissible only where it tends to prove (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others, or (5) to establish the identity of the person charged with the commission of the crime on trial. Commonwealth v. Irons, 230 Pa.Super. 56, 326 A.2d 488 (1974). Clearly here the evidence of appellant’s former crime does not satisfy any of these criteria. Thus following normal evidentiary principles, we believe the severance should have been granted.
However, the denial of a motion for a severance is not an abuse of discretion if the facts and elements of the two crimes are easily separable in the minds of the jurors and if the crimes are such that the fact of commission of each crime would be admissible as evidence in a separate trial for the other. Commonwealth v. Terrell, 234 Pa.Super. 325, 339 A.2d 112 (1975).
We believe this test to be inapplicable to our situation. Here, we are presented with a crime which, as part of the proof, requires proof that the appellant had previously committed a violent crime. Clearly the fact that appellant committed the former violent crime, is of no evidentiary value to the proof of any of the other crimes with which he is so charged; its only relevance is to satisfy the requirements of ‘Former convict not to own a firearm’.

Id., 275 Pa.Super. at 244-45, 418 A.2d at 704.

We believe that the logic and fairness of Judge Hester’s analysis in the Carroll case applies with equal force in the instant appeal and, accordingly, we find that there has been an abuse of discretion in refusing the severance requested by the appellant and reverse and grant appellant a new trial on all the charges.

Judgment of sentence reversed and a new trial granted.

      . Former convict not to own a firearm, etc.
      No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control.
      18 Pa.C.S. § 6105.
      Firearms not to be carried without a license
      (a) Offense defined.—No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as provided in this subchapter.
      18 Pa.C.S. § 6106(a).

      . Appellant was sentenced on December 17, 1979 to a period of incarceration in the State Correctional Institution at Greensburg for not less than eight nor more than sixteen months. Although the sentencing transcript is somewhat confusing, it appears that the trial judge sentenced on the charge of firearms not to be carried without a licence (18 Pa.C.S. § 6106) and suspended sentences on the former convict not to own a firearm charge.

      . Appellant further contended in this appeal that the lower court erred in refusing to suppress evidence based upon insufficient probable cause for an arrest and attacked the sufficiency of the evidence against him in alleging that the court erred in refusing his motion in arrest of judgment. We find no merit to either of these contentions and adopt the well considered opinion of Judge Cappy under date of December 6, 1979 in complete answer to those specific issues.


text:
    442 A.2d 331
    COMMONWEALTH of Pennsylvania v. Randy Ross LENHART, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1981.
    Filed March 5, 1982.

      Randy Ross Lenhart, appellant, in pro. per.
    David J. Flower, Assistant District Attorney, Somerset, for Commonwealth, appellee.
    Before HESTER, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

Appellant, Randy Ross Lenhart, was found guilty of rape, kidnapping, aggravated assault, and simple assault. Pro se and counselled post-verdict motions were filed and dismissed. Judgment of sentence was imposed, and appellant received terms of imprisonment of ten to twenty years on the rape conviction, ten to twenty years on the kidnapping conviction, and five to ten years on the aggravated assault conviction. Additionally, appellant was fined $500.00 on each count, and the court ordered the aggravated assault conviction to run concurrent with the other terms. At the same time, appellant was sentenced in an unrelated case to a term of not less than two nor more than four years in prison on a charge of escape to which he entered a plea of guilty. This appeal followed.

On appeal, appellant raises three issues concerning trial counsel’s ineffectiveness for failing (1) to raise pretrial that his arrest was not supported by probable cause; (2) to file a pre-trial motion to suppress tainted identification procedures; and (3) to subpoena and call certain relevant defense witnesses. The merits of these issues cannot be addressed at this stage because appellant is in need of a properly counselled advocate’s brief.

The procedural facts pertinent to a resolution of the instant appeal reveal the following:

At trial and during the filing of post-verdict motions, appellant was represented by the Public Defender’s Office of Somerset County. On September 3, 1980, the trial court rejected appellant’s request to appoint different counsel. At that time, the court “saw no reason to replace Mr. Johnson [from the Public Defender’s Office].” Record, No. 12. Then, the trial court dismissed two sets of post-verdict motions, one set which was filed by appellant pro se and the other set which was filed by appellant’s counsel. In appellant’s pro se motion, issues of trial counsel’s ineffectiveness were raised.

However, on November 21, 1980, the trial court appointed Gordon D. Reynolds, a private attorney, to “prepare [appellant’s] appeals from the Court’s sentences”. Record No. 21. Although Attorney Reynolds filed a notice of appeal and a petition to proceed in forma pauperis on appellant’s behalf, it appears that he has not filed a brief before this Court since the only brief of record in the instant appeal was filed pro se.

Inasmuch as appellant did not receive the assistance of counsel in preparing his brief, counsel is directed to file a brief.

In the past, we have stressed the importance of affording a defendant the opportunity to have the assistance of counsel in court proceedings. Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981). Accord Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967). Counsel’s assistance, of course, is needed because an

“[e]xploration of the legal ground for complaint, [an] investigation of the underlying facts, and [a] more articulate statement of the claims are functions of an advocate that are inappropriate for a judge, or his staff.” Commonwealth v. Hobson, 286 Pa.Super. at 278, 428 A.2d at 991.

For some reason which is not apparent from our independent review of the record, the issues before this Court have not been framed by an advocate, and instead, we are presented with a pro se brief which inartfully sets forth the issues. See Commonwealth v. Villano, 435 Pa. 273, 275, 256 A.2d 468, 469 (1969) (“the right to be represented by counsel envisions much more than the use of the [Public] Defender’s xerography equipment. Counsel must not merely be present—he must act as an advocate") (emphasis in original).

Additionally, we note that counsel has not filed a petition and brief to withdraw from the case. See Commonwealth v. Burgess, 263 Pa.Super. 234, 236, 397 A.2d 833, 834 (1979). Under these circumstances, counsel has not been relieved of his duty to “prepare [appellant’s] appeals from the Court’s sentences.” Record No. 21. Therefore, counsel for appellant is directed to (1) proceed with the appeal by filing an advocate’s brief on the.merits or (2) to file a withdrawal petition and brief meeting the description previously set forth in Commonwealth v. Greer, 455 Pa. 106, 108-09, 314 A.2d 513, 514-15 (1974), and Commonwealth v. Liska, 252 Pa.Super. 103, 380 A.2d 1303 (1977). In either case, counsel is to file a new brief within thirty (30) days, or risk sanctions. See e.g., Commonwealth v. Burgess, supra.

Jurisdiction is retained.

      . We note that the order referred to is captioned in the following manner: “ORDER APPOINTING APPELLATE COUNSEL ”. Record No. 21. Thus, there is no doubt that counsel was assigned to represent appellant on appeal.


author: CAVANAUGH, Judge:

text:
    442 A.2d 694
    Kristin SAYNE, Appellant, v. Charles R. WYLIE.
    Superior Court of Pennsylvania.
    Argued March 18, 1980.
    Filed Oct. 2, 1981.
    Reargument Denied March 30, 1982.

      G. Wayne Renneisen, Philadelphia, for appellant.
    Charles W. Craven, Philadelphia, for appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   CAVANAUGH, Judge:

The lower court sustained defendant’s preliminary objections on the ground that the statute of limitations barred plaintiff’s claim. We disagree and reverse.

According to the complaint plaintiff suffered personal injuries as a result of an automobile accident on May 27, 1969. On May 25, 1971, plaintiff commenced suit by writ of summons in trespass. Although the writ was issued by the prothonotary, it was never served on the defendant.

On October 1, 1971, plaintiff filed a complaint in trespass. The complaint was reinstated on February 16,1972, April 12, 1972 and December 12, 1972. On December 12, 1972, defendant was served with the complaint.

On December 27, 1972, defendant’s liability insurance carrier requested and received from plaintiff’s counsel a reasonable extension of time in which to answer or otherwise move so that it could review the medical reports and bills and evaluate the claim. On July 16, 1973, defendant’s counsel entered his appearance. On July 18, 1973, the defendant filed preliminary objections which sought to strike the writ of summons and the complaint and dismiss the cause of action. On February 20, 1974, plaintiff filed preliminary objections to the defendant’s preliminary objections. On March 12, 1974, defendant filed his answer to plaintiff’s preliminary objections to defendant’s preliminary objections. On July 27, 1979, the lower court entered an order which sustained the defendant’s preliminary objections on the ground that the statute of limitations had run and which dismissed the plaintiff’s preliminary objections.

Plaintiff’s first argument is that the defense of a waivable statute of limitations should have been raised in new matter rather than in preliminary objections. This proposition of law is correct. Pa.R.Civ.P. 1017, 1030. Nevertheless, the plaintiff has not raised this issue in the lower court. After analyzing prior cases and the Pa.R.A.P. 302, we conclude that this issue has been waived.

In Rufo v. Bastian-Blessing Co., 417 Pa. 107, 207 A.2d 823 (1965), the lower court sustained the defendant’s preliminary objections, inter alia, on the ground that the action was barred by the statute of limitations and the Supreme Court affirmed. On appeal the appellant argued for the first time that the defense of the statute of limitations should have been raised in new matter. This argument was rejected because it was not raised in the court below and because by answering the preliminary objections the appellant had in effect treated the objection as new matter.

Subsequent to Rufo the Supreme Court decided Royal Oil and Gas Corp. v. Tunnelton Mining Co., 444 Pa. 105, 282 A.2d 384 (1971). In Royal Oil the lower court sustained the defendant’s preliminary objections and the Supreme Court reversed. The preliminary objections raised the defenses of the statute of frauds and the statute of limitations. On appeal the plaintiff argued for the first time that these defenses should have been raised in new matter rather than in preliminary objections. The Supreme Court accepted this argument and rejected the appellee’s argument that the issue was waived. The court acknowledged that Rufo was an identical situation and that waiver was applied there. Nevertheless it noted that since Rufo had been decided, Pa.R.Civ.P. 1017 and 1030 had been amended so as to allow a waivable statute of limitations defense to be raised only in new matter. The court also relied on its prior decision in Ziemba v. Hagerty, 436 Pa. 179, 259 A.2d 876 (1969), in which it had also held there was no waiver for failure to raise the issue below.

After Royal Oil, however, the Supreme Court decided Duquesne Slag Products v. Lench, 490 Pa. 102, 415 A.2d 53 (1980). In Duquesne Slag Products the lower court sustained the defendant’s preliminary objections and the Supreme Court affirmed. The preliminary objections raised the defense of res judicata. On appeal the plaintiff argued for the first time that this defense should have been raised in new matter. The Supreme Court rejected this argument and held that the argument was waived. In so holding the Supreme Court discussed and relied on Rufo.

From our analysis of these three Supreme Court decisions, Rufo, Royal Oil and Duquesne Slag Products, we conclude that although Royal Oil appears to overrule Rufo, Duquesne Slag Products shows that Rufo continues to be valid precedent. Our view that Rufo continues to be valid is confirmed by several developments which have occurred since Royal Oil. First, in 1974 the Supreme Court discarded the notion that fundamental errors could be raised for the first time on appeal, Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974) and Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Second, Pa.R.A.P. 302 provides that “[ijssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” See Tice v. Nationwide Life Insurance Company, 284 Pa.Super. 220, 238, 425 A.2d 782, 792 (1981) (dissenting opinion). Third, other decisions have held that the issue, that certain matters should be asserted in new matter rather than in preliminary objections, is waived on appeal if it was not raised in the court below. National Recovery Systems v. Frebraro, 287 Pa.Super. 442, 443-44, 430 A.2d 686, 687 (1981) (illegality); Butcher v. United States Investment Corp., 236 Pa.Super. 8, 12 n.4, 344 A.2d 583, 586 n.4 (1975) (statute of frauds). Further, other cases which have the same issue, that certain matters should be asserted in new matter rather than in preliminary objections, reach the merits of the underlying issue even though the cases are not explicitly based on waiver. Gibson v. Commonwealth of Pennsylvania, 490 Pa. 156, 159 n.2, 415 A.2d 80, 82 n.2 (1980) (sovereign immunity); Freach v. Commonwealth of Pennsylvania, 471 Pa. 558, 564 n.6, 370 A.2d 1163, 1166 n.6 (1977) (same); Donnelly v. DeBurke, 280 Pa.Super. 486, 494 n.4, 421 A.2d 826, 830 n.4 (1980) (statute of limitations); Cooper v. Downingtown School District, 238 Pa.Super. 404, 357 A.2d 619 (1976) (same); cf. Commonwealth, Dept. of Public Welfare v. UEC, Inc., 483 Pa. 503, 397 A.2d 779 (1979) (statute of limitations).

In light of Duquesne Slag Products and the developments in the waiver doctrine which occurred after the decision in Royal Oil, we conclude that Rufo continues as valid precedent and we question the validity of Royal Oil. In the instant case the plaintiff objected to the defendant’s preliminary objections only on the ground that the defendant’s preliminary objections had been filed too late. In the court below the plaintiff did not raise the issue that the statute of limitations defense was improperly presented in preliminary objections rather than in new matter. We, therefore, hold that this issue is waived.

Plaintiff also argues that since the defendant did not raise the issue that service of the complaint was an improper mode of service of process in his preliminary objections, the statute of limitations is not a bar to her claim. We agree.

Since the statute of limitations for personal injuries is two years, 12 P.S. § 34 (repealed) , filing a writ of summons extends the statute of limitations period for two years from the date of filing the writ. Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976); Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970). Moreover reissuance of the writ of summons after it is filed may extend the statute of limitations for another two year period after the writ is reissued. Yefko, supra. Prior to June 28, 1974 if an action is commenced by a writ of summons, the complaint is only the required pleading, it has none of the characteristics of process and service of the complaint does not confer jurisdiction . Yefko, supra. Thus in such a case it is still necessary to timely serve the writ of summons or extend the period by timely reissuing the writ. Yefko supra.

In the instant case the action was commenced on May 25, 1971 by writ of summons within the applicable two year statute of limitations. Thus the statute of limitations was extended two more years to May 25, 1973 and plaintiff was required to timely serve the summons, or reissue it by that date. Yefko, supra. Plaintiff did neither. Instead plaintiff filed a complaint, which after being reinstated several times, was served on the defendant on December 12, 1972. Thus the defendant had notice of the suit by December 12, 1972, well within the May 25, 1973 deadline. Moreover, the complaint provided the defendant with much more detail about the nature of the lawsuit than a writ of summons would have provided. On December 27,1972 the defendant’s insurer sought and obtained a reasonable extension of time in which to answer or otherwise move so that it could review the medical reports and bills and evaluate the claim. However, since the action was commenced by writ of summons, under the rules applicable at that time the complaint was not an effective mode of process and therefore the statute of limitations was not tolled by service of the complaint; tolling could only be accomplished by service or reissuance of the writ of summons. Yefko, supra.

We were faced with this type of situation in Washington v. Papa, 253 Pa.Super. 293, 384 A.2d 1350 (1978), and Cox v. Hott, 246 Pa.Super. 445, 371 A.2d 921 (1977). In Washington and Cox we reversed the lower court’s decision which had held the statute of limitations had barred the causes of action. We reasoned that the defendant was obligated to raise the issue that service of the complaint was improper service of process in timely filed preliminary objections or else the issue was waived and the statute of limitations would not bar the action. In Washington we said:

[I]f service of the complaint was not improper, it clearly occurred within the allowable two-year period which began when the praecipe for a writ of summons was filed. Hence, in order to sustain his defense of the statute of limitations appellee had to show that there had been no effective service. Unfortunately for appellee, his right to challenge service, i.e. in personam jurisdiction, expired twenty days after the complaint was served on August 24, 1973. See Pa.R.C.P., Rule 1026, Cox v. Hott, supra.

Washington, supra, 253 Pa. Super, at 297, 384 A.2d at 1352. Thus the question here is whether the defendant has raised the issue that service of the complaint was improper service of process in timely filed preliminary objections.

Ordinarily preliminary objections must be filed within twenty days of the service of the complaint. Pa.R.Civ.P. 1026. If the defendant had filed his preliminary objections within that time and had raised the issue that the complaint was improper service of process, the plaintiff could have had the writ reissued and served the defendant within the extended statute of limitations period. Here, however, the twenty day time period prescribed by Pa.R.Civ.P. 1026 is not applicable since the plaintiff granted the defendant a reasonable time to answer or otherwise move. See Pa.R.Civ.P. 248. Although the defendant’s preliminary objections were filed more than seven months after the complaint was served, the lower court held that the preliminary objections were filed within a reasonable time and on appeal plaintiff does not challenge that holding. Thus we do not consider the issue of the timeliness of the preliminary objections; we need only consider whether the preliminary objections raise the issue that service of the complaint was improper service of process.

Defendant’s preliminary objections consist of four numbered paragraphs. Only one of these paragraphs mentions service of a document. In that paragraph the defendant merely objects that the writ of summons was never served upon him. Nowhere does he object to the service of the complaint which was served on December 12, 1972. There is no objection that service of the complaint was improper service of process and that, therefore, there is no personal jurisdiction. We, therefore, conclude that the defendant did not object to service of the complaint as improper process. Accordingly, his contention that the statute of limitations is a bar because the writ of summons was not served or reissued within the proper period is waived. Washington, supra; Cox, supra.

Order reversed.

PRICE, J., did not participate in the consideration or decision of this case.

      . For the present statute see 42 Pa.C.S.A. § 5524.

      . In Lamp v. Heyman, supra, the Supreme Court decided that if a plaintiff frustrated service of the writ of summons, the writ would’ be ineffective to commence an action. This rule was prospective from the date of the decision, November 24, 1976. All the relevant proceedings in this case occurred before November 24, 1976 and thus Lamp does not apply.

      . Effective June 28, 1974 Pa.R.Civ.P. 1010 was amended to allow service of the complaint to be effective process if the action is commenced by writ of summons.

      . See note 2, supra.

      . Because of the amendment to Pa.R.Civ.P. 1010 effective June 28, 1974, our holding on this aspect of the instant case will have limited effect. Since that date service of the complaint is effective process even if the action is commenced by writ of summons.


text:
    442 A.2d 698
    COMMONWEALTH of Pennsylvania, v. Thomas McCARTHY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Dec. 18, 1981.
    Reargument Denied April 2, 1982.
    Petition for Allowance of Appeal Denied June 11, 1982.

      James A. Bartholomew, Allentown, for appellant.
    James Knoll Gardner, Assistant District Attorney, Allentown, submitted a brief on behalf of Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal from an order of the Court of Common Pleas of Lehigh County. The procedural history and facts relevant to the issue on appeal are as follows:

Appellant was charged with possession with intent to deliver, and delivery of both cocaine and heroin, and conspiracy to deliver marijuana on eight counts in four criminal informations.

On January 15, 1979, appellant pleaded guilty to two counts of delivery of cocaine and one count of delivery of heroin, pursuant to a plea bargain wherein the Commonwealth agreed to nolle pros the two charges of conspiracy relating to delivery of marijuana.

On March 6, 1979, appellant was sentenced to five to twelve years incarceration. After his Motion for Reconsideration of Sentence was denied, this appeal followed.

Appellant contends the sentence imposed constituted an abuse of discretion because it was excessive and because the trial court considered character and reputation evidence that appellant was a major drug dealer in marijuana in Allentown.

We are unable to reach the merits of this appeal due to the fact that the same was not timely filed, and must, therefore, be quashed.

In Commonwealth v. Molyneaux, 277 Pa.Super. 264, 419 A.2d 763 (1980) we stated:

A notice of appeal must be filed within thirty days after the entry of the order from which the appeal is taken. Pa.R.App.P. 903(a); 42 Pa.C.S.A. § 5571; Commonwealth v. Gottshalk, 276 Pa.Super. 102, 419 A.2d 115, (1980). A motion for reargument or rehearing does not extend the time for taking an appeal from a judgment of sentence, Commonwealth v. Lord, 230 Pa.Super. 96, 326 A.2d 455 (1974); cf. Provident National Bank v. Rooklin, 250 Pa.Super. 194, 378 A.2d 893 (1977), nor is the time extended by a petition for reconsideration or modification of sentence. Commonwealth v. Dorman, 272 Pa.Super. 149, 414 A.2d 713 (1979); Commonwealth v. Wilkinson, 260 Pa.Super. 77, 393 A.2d 1020 (1978).

and at 277 Pa.Super. 266, 419 A.2d 764:

An appellate court may not enlarge the time for filing a notice of appeal. Pa.R.App.P. 105; Rooklin, supra; In re Kemmerer, 46 Pa.Cmwlth. 455, 405 A.2d 1108 (1979); Szura v. Zoning Hearing Bd. of Wyo. Borough, 40 Pa.Cmwlth. 172, 397 A.2d 33 (1979). Further, timeliness of an appeal is a jurisdictional question, Dorman, supra; Strickler v. United Elevator Co., Inc., 257 Pa.Super. 542, 391 A.2d 614 (1978); Leveto v. National Fuel Gas Dist. Corp., 243 Pa.Super. 510, 366 A.2d 270 (1976), allowing this Court to consider the issue sua sponte. Commonwealth v. Gottshalk, supra; cf. Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979); Polascik v. Baldwin, 245 Pa.Super. 1, 369 A.2d 263 (1976).

In the within appeal, the appellant was sentenced on March 6, 1979; on March 14, he filed a motion for reconsideration of sentence; on April 3, the court directed that the notes of testimony at the sentencing hearing be transcribed; on December 12, a brief was filed and oral argument was heard; on February 7, 1980, the lower court denied the motion for reconsideration of sentence; and subsequent to February 7, 1980, the instant appeal was filed. Since the appellant was sentenced on March 6, 1979, an appeal should have been filed within 30 days of that date. Pa.R.A.P. 903. The mere filing of a petition for reconsideration of sentence did not extend the time for filing an appeal, Commonwealth v. Molyneaux, supra; Pa.R.Crim.P. 1410 comment, nor did the court take other action which would extend the time for filing an appeal. See Pa.R.Crim.P. 1410 comment; Commonwealth v. Wilkinson, 260 Pa.Super. 77, 393 A.2d 1020 (1978). Under these circumstances since the appeal was not timely filed, we are without jurisdiction to entertain it.

Appeal quashed.


author: SHERTZ, Judge:

text:
    442 A.2d 700
    LaVerne R. MARTIN and George Martin, her husband, Appellants, v. Larry SOBLOTNEY.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1981.
    Filed Feb. 5, 1982.
    Reargument Denied May 12, 1982.
    Petition for Allowance of Appeal Granted Sept. 14, 1982.

      John F, Becker, Pittsburgh, for appellants.
    S. Asher Winikoff, Pittsburgh, for appellee.
    Before BROSKY, DiSALLE and SHERTZ, JJ.
   SHERTZ, Judge:

Appellants George Martin (husband Appellant) and La-Verne R. Martin (wife Appellant) were injured in a two-car accident which occurred when the vehicle operated by Appellee crossed over Pennsylvania Route 51 onto Appellants’ side of the road and struck the vehicle being operated by husband Appellant. Appellants thereupon brought this action under Section 301(a)(5) of the Pennsylvania No-Fault Motor Vehicle Insurance Act (No-fault Act). ■ Husband Appellant sought damages under Section 301(a)(5)(B) and wife Appellant, although pleading a cause of action under Sections 301(a)(5)(B) and 301(a)(5)(D), proceeded at trial solely under the latter section.

The trial judge, after directing a verdict for husband Appellant on liability, submitted Special Interrogatories to the jury. Based upon the jury’s responses to the Interrogatories, the trial judge molded a verdict in favor of husband Appellant in the amount of $5000, and in favor of Appellee as to the claim of wife Appellant. Appellants’ motions for new trial and judgment n. o. v. were denied and judgment was entered on the verdicts. This appeal followed.

Husband Appellant contends that the trial court erred in refusing to permit proof of the medical expenses incurred by husband Appellant. We agree and therefore reverse the lower court’s order denying husband Appellant’s motion for a new trial. Wife Appellant contends that the trial judge erred in allowing improper cross-examination, in refusing to permit proof of the cost of medical services which had not been and would not be incurred, and in refusing to grant wife Appellant’s motion for judgment n. o. v. We disagree and therefore affirm the lower court’s order denying wife Appellant’s motions for new trial and judgment n. o. v.

George Martin

The sole, and narrow, issue under consideration in husband Appellant’s appeal is whether, in a tort action brought pursuant to Section 301(a)(5)(B) of the No-fault Act, evidence of the cost of medical services necessitated by injuries arising out of a motor vehicle accident and incurred as of the time of trial, is admissible. We point out that we are not here concerned with whether expenses for such services may be pleaded as damages, See Zagari v. Gralka, 264 Pa.Super.Ct. 239, 399 A.2d 755 (1979), nor whether they may be pleaded as evidentiary facts, See D’Antona v. Hampton Grinding Wheel Co., Inc., 225 Pa.Super.Ct. 120, 310 A.2d 307 (1974).

In the case at bar, husband Appellant’s pleading of medical expenses incurred, and to be incurred, elicited no objection by Appellee. However, when, at trial, husband Appellant attempted to offer proof of the medical expenses he had incurred as of that time, Appellee’s objection thereto was sustained by the trial court. R.R. at 104a-105a, 177a-178a. Husband Appellant argues that the learned trial judge erroneously relied on Zagari, supra, and in so doing committed reversible error.

The logical starting point, in attempting to reach a determination of the instant issue, is the Pennsylvania No-fault Act itself. Although some No-fault statutes specifically preclude proof of such expenses, while others specifically allow such proof, our No-fault Act does neither. We therefore are obliged, pursuant to the Statutory Construction Act of 1972, 1 Pa.Cons.Stat.Ann. § 1501 et seq. (Purdon Supp. 1981), to apply the canons of statutory construction in order to determine whether the legislature intended to allow or to preclude such proof.

a.

The extensive debates which preceded enactment of the No-fault Act have resulted in an explicit legislative history which makes it abundantly clear that the General Assembly intended to permit proof of medical expenses at trial. The original No-fault Bill, H.B.1973, as reported from the Committee on Consumer Protection on May 6, 1974, included, in section 505 thereof, a preclusion of pleadings provision which provided, in pertinent part:

“any person eligible for basic loss benefits is precluded from pleading or introducing into evidence in any tort action to recover damages from another person those damages for which benefits provided have been recovered.”

H.B.1973, (Session of 1974), Printers No. 3068.

On June 4, 1974, Representative Scanlon introduced an amendment deleting, inter alia, the preclusion from pleadings provision of the bill. Excerpts from the ensuing debate demonstrate, beyond peradventure, that the legislators were fully informed, and clearly understood, that the purpose of the amendment was, inter alia, to allow proof of medical expenses to be offered and admitted into evidence at trial. The ultimate passage of the amendment, and the subsequent enactment of the No-fault Act, devoid of a preclusion of pleadings provision, transformed the purpose of the amendment into a clear expression of legislative intent, an intent which we are obliged to effectuate.

b.

Proper statutory construction also requires that we give effect to all provisions of a statute. In doing so, we find Section 102(a)(6)(B) of the Act instructive when read together with Section 301(a)(5). Section 102(a)(6)(B) “finds and declares” that only very seriously injured victims need become involved in a proceeding intended to determine fault (in order to recover damages for non-economic detriment). In implementation thereof, Section 301(a), inter alia, was enacted, whereby tort liability (and its concomitant requirement of determining fault) is abolished except under certain prescribed circumstances. The circumstances pertinent hereto are set forth in Section 301(a)(5), each of which, given the finding and declaration noted above, is intended to define or to describe a “victim (who) is very seriously injured”. Since the exception set forth in Section 301(a)(5)(B) is defined solely in terms of “the reasonable value of reasonable and necessary medical and dental services”, it constitutes an express legislative determination that the value of such services is probative of the severity of injuries. Consequently, inasmuch as the fact finder in a tort action brought under Section 301(a)(5)(B) must evaluate the severity of the plaintiffs injuries in calculating the amount of damages for non-economic detriment, proof of the value of medical services incurred, bring probative thereof, is relevant and admissible.

c.

The Statutory Construction Act, in Section 1921(c), indicates that the intention of the General Assembly may be ascertained by considering the items enumerated therein “among other matters”. In giving heed to this injunction, we have identified several other matters which we deem to be pertinent and instructive. They consist of questions involving jurisdiction, relevance and the development of an adequate record for appellate review. Careful consideration of each of these factors confirms the correctness of our conclusion regarding the admissibility of the value of medical services.

An insurmountable jurisdictional problem would be created if we were to adopt Appellee’s view that the reasonable value of medical services may not be proven at trial. As previously noted, in order for a party to meet the threshold requirement of Section 301(a)(5)(B), he must establish that “the reasonable value of reasonable and necessary medical .. . services ... is in excess of seven hundred fifty dollars . . . . ” Absent such a showing, a court is unable to ascertain whether the party’s action, grounded in tort liability, falls within or without the class of actions saved by Section 301. That is to say, absent such a showing a court is unable to determine whether it has jurisdiction over the subject matter of the action.

It is well established in Pennsylvania that where a tribunal lacks authority to hear a particular type of case, the parties may not supply such authority. Subject matter jurisdiction may not be founded upon waiver, estoppel or agreement of the parties. Department of Public Welfare v. UEC, Inc., 483 Pa. 503, 397 A.2d 779 (1979); Appeal of Kramer, 445 Pa. 238, 282 A.2d 386 (1971); Sarsfield v. Sarsfield, 251 Pa.Super.Ct. 516, 380 A.2d 889 (1977); Gordon v. Pulakos, 48 Pa. Commonwealth Ct. 442, 410 A.2d 899 (1980). How then, short of actual proof at time of trial, can the court conclude that it has subject matter jurisdiction? The short answer is that it cannot; both logic and law require that such proof be presented to the jury for its consideration.

In a jury trial, the proper role of the jury includes resolution of issues of fact. DeFulvio v. Holst, 272 Pa.Super.Ct. 221, 414 A.2d 1087 (1979); it is for the jury to decide the reasonableness of charges for medical and hospital services. See Yost v. City of Philadelphia, 174 Pa.Super.Ct. 555, 102 A.2d 210 (1954). Therefore, it is the jury alone which must hear the evidence and, based thereon, decide whether all, or any, of the medical services obtained were “reasonable and necessary”. Similarly, it is for the jury alone to determine whether the value of such services was “reasonable”. Inasmuch as it is within the province of the jury to reject the reasonableness and/or necessity of any or all such services, or the reasonable value thereof, it is clear that a party must be permitted to offer proof of the value of all medical services obtained, as well as. the need for, and nature of, those services.

Moving on to the questions of relevance and the development of an adequate appellate record, we may consider them together. This Court has previously commented concerning the difficulties attendant upon any attempt to evaluate pain and suffering. See Fretts v. Pavetti, 282 Pa.Super.Ct. 166, 177, 422 A.2d 881, 886 (1980); Robert v. Chodoff, 259 Pa.Super.Ct. 332, 368, 393 A.2d 853, 872 (1978). The gist of these comments is, quite aptly, that, in the evaluation of pain and suffering, “systematic logic is not helpful and precision is not achievable”. Frankel v. Heym, 466 F.2d 1226 (3d Cir. 1972). We have also pointed out that, since pain and suffering have no market value, the amount to be awarded therefor is left to the common sense and sound judgment of the jury. Pape v. Short, 199 Pa.Super.Ct. 617, 186 A.2d 431, 432 (1962). Query: would we exercise common sense and sound judgment were we to deny to the jury evidence which the jurors, acting under proper instructions from the trial judge, might find helpful in responsibly discharging their unquestionably difficult task of evaluating pain and suffering? Query also: would we help or hinder our appellate courts, in their task of ascertaining whether a jury verdict is excessive, adequate or inadequate, were we to approve the exclusion of such evidence from the trial record?

Is there, or has there ever been, a practicing attorney or an insurance company claims adjustor who has ignored— or rather, who has not specifically considered, the amount of medical expenses, in the course of negotiations looking to a settlement of a personal injury claim? Similarly, is there, or has there ever been, a judge who has eschewed knowledge of the medical expenses, in attempting to mediate a settlement conference in a personal injury case? Moreover, have not appellate courts repeatedly held that the amount of medical expenses occasioned by an injury is a relevant factor in determining the excessiveness, adequacy or inadequacy of a verdict? See Fretts, 282 Pa.Super.Ct. at 176, 422 A.2d at 886; Murphy v. Penn Fruit Company, 274 Pa.Super.Ct. 427, 434, 418 A.2d 480, 484 (1980); Defulvio v. Holst, 272 Pa.Super.Ct. at 227, 414 A.2d at 1091; Kravinsky v. Glover, 263 Pa.Super.Ct. 8, 25, 396 A.2d 1349, 1358 (1979); Wright v. Engle, 256 Pa.Super.Ct. 321, 326, 389 A.2d 1144, 1147 (1978); Kemp v. Philadelphia Transportation Company, 239 Pa.Super.Ct. 379, 361 A.2d 362 (1976). How then can we, and why then should we, deny such evidence to jurors who, though their common sense and sound judgment may arguably exceed that of attorneys, claims men and judges, lack experience in the area of personal injury claim evaluation? We can not, we should not and we do not. We therefore hold, for all the foregoing reasons, that evidence of the reasonable value of reasonable and necessary medical services is admissible in an action arising under Section 301(a)(5)(B) of the No-Fault Act.

d.

In reaching a contrary result, the learned trial judge considered Zagari v. Gralka, supra, as controlling and felt constrained thereby to exclude proof of the value of husband Appellant’s medical services. We respectfully disagree inasmuch as we believe that: (1) Zagari is distinguishable, (2) Zagari is inapposite and (3) if Zagari can be read as concluding that the value of medical services is inadmissible at trial, such a conclusion is obiter dictum and therefore not binding upon this Court.

“In every ease, what is actually decided is the law applicable to the particular facts; all other legal conclusions therein are but obiter dicta ”. In Re Schuetz’s Estate, 315 Pa. 105, 109, 172 A. 865, 867 (1934). This succinct statement of the rule is a distillation of the following more expansive discussion. General expressions in an opinion may not properly be severed from, and must be considered in light of, the facts of the case. What is actually decided, and controlling, is the law applicable to the particular facts of that particular case. All other legal conclusions therein are but obiter dicta and, though they may be entitled to great consideration, they are not controlling. See, In Re Trust Estate of Pew, 411 Pa. 96, 104, 191 A.2d 399, 404 (1963); Welsch v. Pittsburgh Terminal Coal Corporation, 303 Pa. 405, 154 A. 716, 717 (1931).

Inasmuch as the court below relied on Zagari, and Appellee urges us to do likewise, an analysis of Zagari, in the light of the foregoing well established principles of law, is required. Zagari came before this Court on appeal by the Plaintiff from an order of the court below which sustained Defendant’s preliminary objections and struck various sub-paragraphs of the complaint. Only one of the stricken subparagraphs, 8(a), is here pertinent. It read as follows:

8. Solely as a direct and proximate result of Defendant’s negligence and reckless conduct, as aforesaid, Plaintiff has sustained the following damages:
a. Plaintiff has accumulated and will continue to accumulate reasonable and necessary medical expenses for doctors fees and theraputic treatments, the reasonable value of which is in excess of Seven Hundred and Fifty Dollars, ($750.00);
WHEREFORE, Plaintiff, John J. Zagari, demands Judgment against Defendant, William Gralka, in excess of Ten Thousand Dollars, ($10,000.00). (emphasis added).

Two most significant factors are readily discerned from the quoted averment and ad damnum clause: (1) the Plaintiff pleaded the medical expenses, accumulated and to be accumulated, as damages for which recovery was sought; and (2) no issue was, nor could have been, presented to this Court as to whether proof of medical expenses was admissible at trial. The second factor is manifest from the stage of the litigation, as well as from the substance of the order from which the appeal was taken. The first factor is equally clear and was noted by this Court as follows:

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. With this contention we cannot agree.
Section 301(a)(5) specifically provides that damages for non-economic detriment are recoverable if the threshold requirements are met. . . . Damage items such as medical expenses . . . 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. 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.

Id., 264 Pa.Super.Ct. at 245, 399 A.2d at 758-759 (footnotes omitted) (emphasis added).

The foregoing analysis of Zagari demonstrates quite clearly that the issue presented therein was limited to, and only to, whether medical expenses may be pleaded and recovered “within the ambit of section 301(a)(5)”; no question of the admissibility of such expenses was raised and no such question was before the Court. In the case at bar, on the other hand, the issue presented is, precisely and explicitly, whether proof of medical expenses is admissible at trial; we have not been called upon to consider, or reconsider, the pleading and recovery thereof as damages. In Zagari, this Court’s holding stated a simple and direct proposition: medical expenses may not be recovered as damages in a tort action brought under the No-fault Act, therefore medical expense damages may not be pleaded in connection with such an action. This proposition is not pertinent to the instant case. It ineluctably follows therefore that Zagari is distinguishable and inapposite.

As to Zagari’s reference to proof of medical expenses at trial, we are satisfied, in accordance with the principles set forth above, that it is obiter dictum, i.e. it reflects a conclusion which is inapplicable “to the particular facts of that particular case”. As such it is entitled to great consideration, but it is not controlling. Consequently, we have accorded it due consideration but we are unpersuaded thereby. We believe the better view is, and we so hold, that proof of the reasonable value of reasonable and necessary medical services is admissible at trial of a tort action under Section 301(a)(5)(B) of the No-fault Act.

LaVerne R. Martin

Wife Appellant suffered a laceration of the arm which resulted in a scar. She initially argues that the trial court erred in permitting cross-examination of her medical expert witness, Dr. George C. Wright, regarding the possibility of plastic surgery to improve the scar. We conclude that this issue was not properly preserved for appeal.

We must consider wife Appellant’s contention within the context of well established rules regarding the preservation of issues for appeal. First, where a reason for an objection is specifically stated, all other reasons for exclusion are waived. Estate of Cusat, 470 Pa. 418, 368 A.2d 698 (1977); Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595 (1964); See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); McCormick on Evidence 117 (2d ed. 1972). Second, the failure to object to, or move to strike, objectionable testimony results in a waiver of a claim that the court erred in allowing, or in failing to strike, such testimony. Schneider v. Albert Einstein Med. Center, etc., 257 Pa.Super.Ct. 348, 390 A.2d 1271 (1978); See Dilliplaine v. Lehigh Valley Trust Co., supra. Thus if counsel does not object to the admission of evidence he may not argue on appeal that its admission was error. Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (1981); Frank B. Bozzo, Inc. v. Electric Weld Division, 283 Pa.Super.Ct. 35, 423 A.2d 702 (1980); International Systems, Inc. v. Personnel Data Systems, Inc., 274 Pa.Super.Ct. 500, 418 A.2d 518 (1980); Capan v. Divine Providence Hospital, 270 Pa.Super.Ct. 127, 410 A.2d 1282 (1977).

On direct examination, Dr. Wright testified that the scar was severe, permanent and irreparable. R.R. at 113a. On cross-examination the following exchange occurred between Appellee’s counsel, Mr. Winikoff, and Dr. Wright:

Q Have you sent or requested that Mrs. Martin see a plastic surgeon to determine whether or not the scar is or is not permanent?
A No, I have not.
Q The scar itself, you indicate, has lightened in time.
A Yes.
Q And is it your opinion or do you know whether or not it may continue to lighten?
A I feel that it has recovered to its maximum.
Q You are not, doctor, a plastic surgeon, however?
A No, sir.
Q And it is possible, is it not, sir, that if one examined her he may have a different opinion?
MR. BECKER [wife Appellant’s counsel]: I would object to that. Anything is possible, Your Honor.
THE COURT: Objection is overruled.
A I feel that the scar may be improved with plastic surgery. This would be quite extensive and rather expensive requiring hospitalization and fairly extensive reconstructive surgery.
Q Well, you indicated in response to a question that you thought that the injury was permanent and severe. I believe you used another word that Mr. Becker asked you, irreparable, irreparable.
A Yes.
Q Now, you have indicated that it is possible with extensive plastic surgery—.
A To improve it.
Q To improve it?
A Yes.

R.R. at 122a-123a.

Wife Appellant’s counsel’s objection that “anything is possible” referred, quite obviously, to the form of the question, i.e., that it called for Dr. Wright to speculate as to the possibility that another physician might form an opinion different from Dr. Wright’s opinion that the scar had recovered “to its maximum”. Clearly the objection was not to any reference to plastic surgery by Appellee’s counsel, since his question contained no such reference. The initial indication that plastic surgery might improve the scar was volunteered by wife Appellant’s witness, Dr. Wright, in his unresponsive answer to the question which elicited the objection. Counsel interposed no objection to, nor did he move to strike, Dr. Wright’s answer or the subsequent questions and answers regarding the possibility of plastic surgery. When counsel did eventually call for a sidebar conference, he still made no objection to, nor did he move to strike, the testimony in question. Rather, he requested the conference in order to indicate his intention to offer evidence of the cost of such surgery so that wife Appellant might meet the $750.00 medical expense threshold of Section 301(a)(5)(B) of the No-fault Act.

In view of the foregoing, we conclude that wife Appellant waived any claim of error in connection with Dr. Wright’s testimony, had error been committed. However, the trial court did not err in permitting the testimony wife Appellant now challenges. In McGowan v. Devonshire Hall Apartments, 278 Pa.Super.Ct. 229, 232, 420 A.2d 514, 515 (1980), this Court repeated the standards to be applied in considering the propriety of cross-examination:

[T]he scope of cross-examination is within the broad discretion of the trial court, and we will not reverse its decision absent an abuse of that discretion. Brennan v. St. Luke’s Hospital, supra [446 Pa. 339, 285 A.2d 471]; Copper Plumbing, Inc. v. Macioce, 225 Pa.Super. 236, 310 A.2d 411 (1973). Although cross-examination is generally said to be confined to matters testified to by the witness on direct examination, Woodland v. Philadelphia Transportation Co., 428 Pa. 379, 238 A.2d 593 (1968); Okat kewicz v. Pittsburgh Railways Co., 397 Pa. 303, 155 A.2d 192 (1959), this is broadly defined to include inferences, deductions or conclusions which may be drawn therefrom, Lester v. Century Indemnity Co., 356 Pa. 15, 50 A.2d 678 (1947), which explain or destroy the effect of the direct testimony, Conley v. Mervis, 324 Pa. 577, 188 A. 350 (1936); Murphy v. Wolverine Express, Inc., 155 Pa. Super. 125, 38 A.2d 511 (1944).

Id., 278 Pa.Superior Ct. at 244, 420 A.2d at 522. Furthermore, cross-examination which develops facts suppressed or ignored by the adverse party is proper. See Commonwealth v. Mickens, 201 Pa.Super.Ct. 48, 191 A.2d 719 (1963). Since wife Appellant elicited testimony from Dr. Wright that the scar was permanent and irreparable, cross-examination regarding plastic surgery which might improve or repair the scar was well within the above stated limits.

Wife Appellant next asserts that, inasmuch as plastic surgery and its possible result were introduced by way of cross-examination, the trial court should have permitted her to offer proof of the cost of such surgery in order that she might reach the $750.00 medical expense threshold of Section 301(a)(5)(B). We find this argument to be particularly inappropriate given wife Appellant’s testimony, on direct examination, that she would not undergo plastic surgery. R.R. at 142a. It is clear to us, and we so hold, that the value of medical services, which a party has not incurred and will not incur, may not be admitted into evidence in order to satisfy the threshold requirements of Section 301(a)(5)(B).

Wife Appellant’s final contention is that the trial court erred in denying her motion for judgment n. o. v. Wife Appellant argues that her request for binding instructions that her scar was severe, permanent and irreparable, should have been granted inasmuch as Dr. Wright’s testimony was not controverted except by the “improper” cross-examination regarding the possibility of plastic surgery.

A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper; any doubts should be resolved in favor of the verdict winner. Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980); Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Posh Construction, Inc. v. Simmons & Greer, Inc., 292 Pa.Super.Ct. 142, 436 A.2d 1192 (1981). The evidence must be considered in the light most favorable to the verdict winner, giving him the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in favor of the verdict winner. Broxie v. Household Finance Company, supra; Posh Construction, Inc. v. Simmons & Greer, Inc., supra.

So viewing the evidence, we find it discloses that, according to Dr. Wright, wife Appellant suffered a severe laceration, about three inches long, involving the skin and subcutaneous tissue of the upper arm, resulting in a scar and a depressed area over the incision. The scar which was severe, painful, irreparable and permanent, R.R. at 112a, had lightened with the passage of time and might be further improved with plastic surgery. R.R. at 122a.

The weight to be given the testimony of an expert witness is for the jury, Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967), and it has a right to believe all, some, or none of the expert’s testimony. Tinicum Real Estate Holding Corp. v. Com. Dept. of Transp., 480 Pa. 220, 389 A.2d 1034 (1978). Even the uncontradicted opinion of an expert is not conclusive and the jury need not accept it. Rogers v. Hammett, 229 Pa.Super. 6, 323 A.2d 394 (1974); Jones v. N. V. Nederlandsch-Amerikaansche Stoomvaart Maatschappij, 374 F.2d 189 (3d Cir. 1966), cert. denied, Holland Am. Line v. Philadelphia Ceiling & Stevedoring Co., 388 U.S. 911, 87 S.Ct. 2114, 18 L.Ed.2d 1349. In Freed v. Priore, 247 Pa.Super. 418, 372 A.2d 895 (1977), this Court considered the effect to be given to medical expert testimony:

[Wjhen an expert witness states his opinion, this testimony is to be received by the jury just as any other opinion testimony. The court and jury are not bound by an opinion of an expert. Expert testimony, if believed, merely proves, that, in light of the expert’s general experience and his observations of plaintiff, he had reached the conclusions announced. These opinions are to be considered with the other evidence; they may be rejected in whole or in part; the weight to be given them is for the jury. Cooper v. Metropolitan Life Ins. Co., 323 Pa. 295, 186 A. 125 (1936); Baur v. Mesta Machine Co., 195 Pa.Super. 22, 168 A.2d 591 (1961).

Id., 247 Pa.Super. at 426, 372 A.2d at 899-900.

In the instant case, the jury was entitled to conclude that Dr. Wright’s testimony of permanency and irreparability was rebutted by his own testimony on cross-examination. Furthermore, the jury viewed photographs of the scar taken shortly after the accident, as well as the scar itself which was exhibited to the jury by wife Appellant. It was therefore permissible for the jury to reject Dr. Wright’s testimony and to conclude that the scar was not severe, and/or that it was not permanent and/or that it was not irreparable. Any such finding standing alone, or in combination with any such other finding, was sufficient to sustain the verdict reached by the jury as to wife Appellant. We conclude, therefore, that the learned trial judge’s refusal of wife Appellant’s request for binding instructions, and the lower court’s denial of her motion for judgment n.o.v., were proper;

The order of the court below dismissing wife Appellant’s motions for new trial and for judgment n.o.v. is affirmed. The order of the court below, dismissing husband Appellant’s motion for new trial is reversed, the judgment entered pursuant thereto is vacated and the cause is remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

This case was decided prior to the expiration of SHERTZ and DiSALLE, JJ., commission of office.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 Pa.Stat.Ann. § 1009.-301(a)(5)(B) (Purdon Supp.1981).

      . The pertinent sections of the No-fault Act provide:
      (a) Partial abolition.—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 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:
      (B) the reasonable value of reasonable and necessary medical and dental services, ... 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
      (D) injury which in whole or in part consists of cosmetic disfigurement which is permanent, irreparable and severe.
      40 Pa.Stat.Ann. §§ 1009.301(a)(5)(B) and (D) (Purdon Supp.1981).

      . We do not address the propriety of this action inasmuch as it has not been challenged by Appellee.

      . The Special Interrogatories to the jury, together with its responses thereto, read as follows:
      SPECIAL INTERROGATORIES TO JURY
      1. Was the Defendant, Larry Soblotney, negligent?
      ANSWER: Yes X No_
      (If you answer no, you need not go any further.)
      2. Was the negligence of the Defendant, if any, a substantial factor in bringing about harm to the Plaintiffs?
      ANSWER: Yes X No_
      (If you answer no, you need not go any further.)
      3. Did the Plaintiff, Laverne Martin, suffer any injury which consists of cosmetic disfigurement which is permanent, irreparable and severe?
      ANSWER: Yes_ No X
      (If you answer no, you need not answer question 5.)
      4. What is the amount of damages, if any, suffered by Plaintiff, George Martin?
      ANSWER: $5000
      5. What is the amount of damages, if any suffered by the Plaintiff, Laverne Martin?
      ANSWER: _
      (Answer this only if your answer to No. 3 was “yes”.)
      /s/ Lucille S. Affinits
      Foreperson

        The responses to the first two interrogatories were supplied by the trial court, pursuant to its direction of a verdict in favor of husband Appellant.

      . In view of our disposition, we need not and do not address husband Appellant’s other contentions and we deem his motion for judgment n. o. v. moot.

      . Paragraph 25 of Appellant’s complaint, relating to husband Appellant, reads as follows:
      25. As a further result of this accident, the plaintiff has been or will be obliged to receive and undergo medical attention and care and to expend various sums of money for or to incur various expenses described in 40 P.S. 1009-301(A)(5)(b) for the injuries suffered, the cost or reasonable value of which is, or may be, in excess of the sum of $750.00 exclusive of diagnostic, x-ray and rehabilitation costs in excess of $100.00, and may be obliged to continue to expend such sums or incur such expenditures for an indefinite time in the future. The plaintiff has incurred the following expenses for such treatment to the date indicated:
      a. McKeesport Hospital—inpatient services rendered January 2, through January 11, 1976 ... $1,508.50

      , The New Jersey Automobile Reparation Reform Act, N.J.Stat.Ann. § 39:6A-1 et seq., provides in § 39:6A-12 that:
      “Evidence of the amounts collectable or paid pursuant to sections 4 and 10 of this act to an injured person is inadmissible in a civil action for recovery of damages for bodily injury by such injured person.”
      Title 21'of the Delaware Code § 2118(g) provides that:
      “Any person eligible for benefits described in paragraph (2) or (3) of subsection (f) of this section other than an insurer in an action brought pursuant to subsection (c) of this section, is precluded from pleading or introducing into evidence in an action for damages against a tort-feasor those damages for which compensation was available under paragraph (2) or (3) of subsection (a) of this section without regard to any elective reductions in such coverage and whether or not such benefits are actually recoverable.”

      . Florida’s Automobile Reparations Reform Act, Fla.Stat. § 627.727 et seq., provides that:
      “... An injured party who is entitled to bring suit under the provisions of § 627-737, or his legal representative, shall have no right to recover any damages for which personal injury protection benefits are paid or payable. The plaintiff may prove all of his special damages notwithstanding this limitation, but if special damages are introduced in evidence, the trier of facts, whether judge or jury, shall not award damages for personal injury protection benefits paid or payable.” Fla.Stat. § 627.736(3).

        New York’s Comprehensive Automobile Insurance Reparations Act, N.Y. Ins. Law § 670 et seq. (McKinney) provides for a qualified right to plead loss recoverable under the act.
      “Where there is no right of recovery for basic economic loss, such loss may nevertheless be pleaded and proved to the extent that it is relevant to the proof of noneconomic loss.” N.Y.Ins.Law (McKinney) § 673 Subd. 3.

      . 1 Pa.Cons.Stat.Ann. § 1921 (Purdon Supp.1981), which articulates the criteria we must consider in determining, and giving effect to, the legislative intent, provides as follows:
      (a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
      (c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
      (7) The contemporaneous legislative history.

      . MR. SCANLON. My amendment removes from the bill what is known as section 505, on page 53, lines 9 through 27. This is referred to as the preclusion of pleadings provision of the act. Now under section 505, if A and B are involved in an automobile accident ... A ... can only go into court and say, I was hurt. He cannot go in and say, I went to Dr. X and Dr. Y and they each charged me $50.00. I was in Z Hospital and it cost me $650.00.
      [W]hen the jury does enter a verdict in the case of A against B, they just guess on an amount. They have nothing upon which to base a verdict.
      On the other hand, if you were permitted to tell them how much you paid each doctor, how much you paid each hospital, how much you paid for X-rays, what your lost wages were and describe your pain and suffering, a jury, once having a dollar amount, could certainly arrive at a more rational verdict. But if they have no amounts to begin with, no idea how much you have spent, it appears to be to be ridiculous to expect a jury to come up with what would be a just verdict.
      For these reasons, I, ask the members of the House to support this amendment.
      MR. MANDERINO. Mr. Speaker, I rise to support the amendment offered by Mr. Scanlon.
      What does a preclusion of pleadings mean, as in House bill No. 1973 at the present time, if first-party benefits are recovered or recoverable under the no-fault provisions of this particular legislation—you may not have collected them but you still cannot prove their dollar amount—if you get to the point that you file a law suit or are able to file a law suit under the provisions of the bill? What does this mean?
      This means that if I get over the medical threshold—whatever that amount might be—when I go into court, [I] can testify that I went to the doctor on May 1, the doctor examined me, and the doctor prescribed a cast for the broken bone, I went to the doctor on May 29, he X-rayed it, and he removed the cast. I cannot tell them what the doctor charged me for the initial examination, what he charged me to put the cast on, what he charged me to take it off. I cannot tell the jury how much, in another case, was spent in hospital stays. I cannot tell the jury, if I have lost wages, the amount of wages I have lost. I can simply tell them that I am a mechanic and that I lost 30 days at work.
      Now it seems to me that once you get to the point where you have decided that this case is serious enough so that this injured party has the right to bring a law suit under the no-fault bill passed, you ought to give the right to prove ... the amount of his medical expense in dollars, and not simply allow a jury to guess ... how much he really took out of his pocket to pay his medical bills, because, as Mr. Foor says, they use that as a gauge to decide what is a fair award.
      I think that that is a much better way to prove your claim, by actual dollar loss, by actual economic loss, than to leave it up to a jury to guess what those particular items might be.
      I think the amendment offered by Mr. Scanlon makes an awful lot of sense. I do not think it will be any great detriment to this no-fault statute that we will pass in Pennsylvania. I urge the adoption of the amendment.
      MR. SCANLON, ... Now I would have no objections, I think to a fair preclusion of pleadings provision if there were no threshold. But in the Pennsylvania statute proposed here today, there is a threshold of $750.00, and to add to that the ignominy of a preclusion of pleadings section is completely unfair.
      ... There are volumes and volumes of case law in the field of excess verdicts. And how does the Supreme Court review an excessive verdict case?
      They look at the items of special damage in dollars and cents which were proven by the plaintiff. Then they compare that with the amount brought in by the jury, and they determine whether or not the verdict was, in effect, excessive so as to shock their conscience.
      Now, Mr. Speaker, I do not know how a court could review a verdict under the circumstances as this bill presents it when the plaintiff is precluded from proving the special damages on a dollar-by-dollar amount.
      MR. W. D. HUTCHINSON. Mr. Speaker, I urge the defeat of this amendment, and there is a very simple reason. It goes with what Mr. Renninger said. What the amendment would do would permit you to put before the jury items of damages which are not recoverable. It seems to me that that is utterly illogical. If you have to prove a case on pain and suffering, you prove it by calling the doctor and by calling the witness or your client to testify to what he experienced and what he felt. But there seems to be no logical reason to include items of damages before the jury that you cannot recover.
      MR. HEPFORD. . . .
      .. . Let us have the jury receive all the facts in the case and then, if you want to take some procedure to credit any payments made, that would be the proper way to do it.
      MR. ITKIN.... What is really precluded? Is it the dollar amount?

        MR. SCANLON. It precludes from ... introducing into evidence • in any tort action to recover damages from another person those damages for which benefits provided have been recovered. The word “damages” precludes you from proving damages. “Damages,” to me, means dollars and cents.
      MR. ITKIN. So it is really a dollars-and-cents figure?
      MR. SCANLON. That is right.
      MR. SCANLON. It is my understanding of the law that there has to be a reasonable relationship between that portion of the verdict which is attributable to pain and suffering and the value of the special damages which have been proven.
      So in order for a jury to make a sensible verdict and make a sensible award for pain and suffering, it is my understanding of the law that they must know the value of the medical services provided, for instance.
      ... There are so many intangibles here that to shut out the plaintiff by saying he cannot prove specifically in dollars and cents his losses appears to me to be ridiculous.
      MR. ITKIN. Well, it seems to me that all we are trying to preclude from pleading is something which is irrelevant; that is, to take a tangible concept of how much money was paid out to pay certain bills, how much the individual has made, and who has received total and complete economic recovery for those out-of-pocket expenses, and then state that the person’s pain and suffering is somehow related to the price he paid to his physician and to the earnings that he receives as a wage earner.
      My interpretation is that if a person has a broken rib, whether he be a mechanic or whether he be a high-priced attorney, he has the same pain and the same suffering and should receive the same type of award.
      Therefore, I strongly support the retention of the preclusion of pleadings clause and I urge this House to vote against the amendment.
      MR. FOOR____
      ... when you sue for pain and suffering ... you cannot say how much money you spent in your doctor bills, but you can describe your injury—I was in a cast; I was 6 weeks in bed. You can describe how much it hurt, but you cánnot describe the monetary value. That is the reason for the preclusion of pleadings in this bill, and I ask for a negative vote on this amendment.
      MR. MANDERINO. Just one footnote. When we adopt a threshold provision, we are effectively eliminating from the courts a very high percentage of potential law suits .... what you are doing is saying you not only have to reach that threshold, but we are going to place a millstone around your neck when you go into court—you are not going to be able to tell what the dollar figures are that you had to pay for medical expense ...

        I think that the threshold is a severe enough restriction. It will accomplish all the purposes that no-fault wants to accomplish. It is working in other states without putting in both threshold and preclusion of pleadings. And I think that every discerning member of this House should support the Scanlon amendment.
      MR. RENNINGER.
      ... If you are going to go over the threshold and have a further crack at pain and suffering, then prove it like Mr. Hutchinson suggested, and I think that is sound.
      Legislative Journal, House of Representatives, June 4, 1974 at 4747-53.

      . Although Representative Scanlon’s amendment was originally defeated, upon reconsideration the amendment was passed and the preclusion from pleadings provision of the Bill was deleted. Legislative Journal, supra at 4763-64. Of particular interest are the remarks of MR. RYAN, moments before the reconsideration vote was taken:
      It is not fair to the innocent victims. These people we have to think about, too. They should be entitled to take before the jury what their medical expenses were .. . This bill would preclude that, and it is for that reason I would ask, again, for a favorable vote on the Scanlon amendment.

        Id. at 4763.

      . 40 Pa.Stat.Ann. § 1009.102(a)(6)(B), which provides:
      (a) Findings.—The General Assembly hereby finds and declares that:
      (6) careful studies, intensive hearings, and some State experiments have demonstrated that a basic system of motor vehicle accident ... law which:
      (B) eliminates the need to determine fault except when a victim is very seriously injured, is ... a ... fair system.

      . Proof of this assertion is found in the Record of the instant case. A thorough search thereof fails to disclose any facts upon which the court below could properly have concluded that it had subject matter jurisdiction. This deficiency, of course, is the natural consequence of the lower court’s ruling excluding any and all evidence of the cost of the medical services incurred by husband Appellant.

      . See e.g., Troutman v. Tabb, 285 Pa.Super.Ct. 353, 427 A.2d 673 (1981).

      . There is some doubt as to whether Zagari can, or at least should, be so read. This doubt arises from a subsequent characterization thereof by Judge Price, who wrote the majority opinion in Zagari. In Fretts, supra, Judge Price stated:
      We have previously noted the difficulty in achieving precision in calculating appropriate compensation because one cannot discern the amount of pain and suffering that was endured merely by considering the expenses incurred. See Zagari v. Gralka, 264 Pa.Super. 239, 399 A.2d 755 (1979); Robert v. Chodoff, supra; Pape v. Short, 28 D. & C.2d 581 (C.P. Allegheny Co. 1961), aff'd., 199 Pa.Super. 617, 186 A.2d 431 (1962).

        Id. 282 Pa.Super.Ct. at 176, 422 A.2d at 886 (emphasis added). In employing the word “calculating” in connection with compensation for pain and suffering, Judge Price seems to be describing a jury function. It is therefore noteworthy that, in conjunction therewith, he points up the inappropriateness of “merely” considering the expenses incurred. This can reasonably be read as indicating that the expenses incurred may be one, but not the only, factor to be considered by the jury in assessing compensation for pain and suffering.

      . In contrast, the complaint in the instant action, to which no preliminary objections were filed, did not plead the medical expenses as damages, nor did it contain any language suggesting that recovery thereof was sought. See n.6, supra. Rather, the language contained therein served the sole and necessary purpose of alleging that the court below had jurisdiction of the subject matter.

        Moreover, and equally significant, the litigative stage here is that trial has been concluded, post-trial motions have been dismissed and judgment has been entered.

      . In order to avoid any possibility of misunderstanding, however remote, we do wish to indicate, by way of dictum, that we are fully in accord with the Zagari holding that the No-fault Act precludes recovery of medical expenses. A conclusion to the contrary would constitute an impermissible disregard of the statutory language. See Statutory Construction Act, supra, § 1921(b).

      . Although evidentiary facts may not be pleaded, presentation of such facts at trial is permitted. See D’Antona v. Hampton Grinding Wheel Company, 225 Pa.Super.Ct. at 126, 310 A.2d at 310.

      . MR. BECKER: Your Honor, could we approach the bench a minute, please?
      THE COURT: Yes.
      (Discussion at side bar)
      MR. BECKER: Your Honor, in view of this line of questioning I want the Court to understand that I may have to ask the doctor what it would cost to repair the scar, and the cost of repairing that scar would have to go to the jury to determine whether or not that meets the threshold of $750.00 because of this line of cross-examination.
      R.R. at 123a.