The opinion
Dissenting and Concurring Opinion by
Judge Craig:
Everyone is entitled to a day in court in the sense of a chance to present proof in support of a legally sufficient claim. Dismissal of this case without allowing the presentation of evidence is not warranted.
The petitioners have pleaded facts to allege that the unvouchered expense increase given to incumbents in their current terms, in the identical amount of their after-election salary hike, constitutes a salary raise contrary to Pennsylvania Constitution art. II, §8, whidh forbids salary increases during the term of a legislator.
Precisely because a dismissal upon demurrer cuts a plaintiff off from the right to prove the case, the courts *38 will sustain such a preliminary objection only when the basis for doing so is certain. Any doubt should be resolved in favor of overruling the demurrer. Gekas v. Shapp, 469 Pa. 1 , 364 A.2d 691 (1976).
Here there has been no hearing, no stipulation, no deposition, and no sworn document other than the petition itself. Hence Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158 , 507 A.2d 323 (1986) provides no authority for dismissing this case without some factual record. In Consumer Party, the Chief Justices opinion pointed out that:
The parties agreed to have the case resolved upon stipulated facts and cross-motions for summary judgment. (Emphasis added.)
510 Pa. at 166 , 507 A.2d at 327 . The litigants in Consumer Party thus chose to rest the factual issues upon a stipulation in place of a hearing.
Here the petitioners also proposed a stipulation, but the respondents rejected that Consumer Party approach to making a record. Thus there has been no mutual willingness to decide this case upon summary judgment, and hence no waiver of the basic right to a hearing.
The Supreme Court opinion in Consumer Party rules out any contention that the constitutional question is purely one of law to be decided upon the bare words of the statute. That cannot be so because the Supreme Court said:
As long as the expense allowance fixed is reasonably related to actual expenses, the lack of mathematical precision inherent in such a system does not present a problem.
510 Pa. at 186 , 507 A.2d at 337 . Obviously, determination of the reasonableness of the expense allowance in relation to actual expenses requires some factual record within which such actualities can be proved.
*39 Also, the Supreme Court in Consumer Party, referring specifically to the claim “that the allowance is in reality a veiled salary increase,” held that the attackers must bear “a heavy burden of proof . ...” Id. To meet a burden of proof, there must be an opportunity to submit proof.
With the stipulation before it, the Supreme Court held that the attackers there “utterly failed to make any showing that the expense allowance is a sham.” 510 Pa. at 187 , 507 A.2d at 337 (emphasis added). That case had a stipulation which provided a fact record in which a “showing” could have been made. And the expense allowance was different.
In this case there is no fact record of any kind. Thus this court cannot dispose of this present case by the statement that Consumer Party “noted that . . . there was no evidence to show that the expense allowance was unreasonable.” A concept of “evidence” in that other case cannot be controlling here, when this case has no evidence.
Certainly, we cannot dismiss this case on the basis of “no evidence” when the dismissal itself forever would bar the petitioners from presenting any evidence.
At this point, on preliminary objections, the fundamental and unchanging rule is that this court must accept the factual averments as if they were true, in deciding the demurrer. The Supreme Court, like this court, has repeatedly said:
For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts . . . and every inference fairly deducible from those facts.
County of Allegheny v. Commonwealth, 507 Pa. 360, 372 , 490 A.2d 402, 408 (1985) (citations omitted).
*40 On the key question of whether the unvouchered expense allowance here is a payment which in fact constitutes salary, the petition pleads, among other matters, that the payment is “not in any way related to expenses actually incurred, and is completely devoid of any showing that an increase in ‘expenses’ is necessary.” (Petition, para. 50)
That point of pleading alone makes the petition legally sufficient because it proposes to address the very fact which the Supreme Court in Consumer Party, quoted above, described as the test of a constitutional expense allowance—“[a]s long as the expense allowance fixed is reasonably related to actual expenses . . . .”
Accordingly, with respect to the Article II, section 8 constitutional question, there should be no dismissal of the case against the Commonwealth, and the Commonwealth should be required to file an answer.
On the other hand, sustaining the separate objections based on the Speech and Debate Clause is supported by a distinctly different aspect of the Consumer Party decision, where the Supreme Court affirmed this court’s order sustaining preliminary objections as a matter of law on that point only sharply distinguishable from the grant of summary judgment with reference to the other questions.
The petitioners’ contentions relating to the nonseverability clause should be rejected as premature. The petitioners claim that non-severability denies them access to the courts. Apparently, at least in part, their theory is that the judiciary would be disinclined to hold a statutory provision invalid if it put their own salary increase at risk. That is an unwarranted and gratuitous insult to the integrity of the judiciary. However, it is not germane to this case because judicial salaries are not involved here.-
*41 If any portion of the statute is invalidated at any stage in this case, the question of the non-severability clause might become ripe for decision thereafter, but only in some later case questioning the survival of other provisions of the statute.
Judge MacPhail joins this dissent.