*2 J., Before EAGEN, O’BRIEN, C. ROB- ERTS, POMEROY, MANDERINO, NIX and JJ.
OPINION NIX, Justice.
Plaintiff-appellee, Phillips Furnishings, Inc., Home litigation commenced by way complaint the instant of a sounding assumpsit alleging trespass that on 16, 1973, agent June its $5,669.00 thе sum of delivered into “night depository defendant-appellant, safe” of Bank, Continental and that those funds were never cred- Phillips’ ited to the account. The Bаnk moved sum- mary judgment asserting that there was no triable issue of material sought summary fact.1 The Bank in its favor relying upon following exculpatory *3 in “night depository agreement”: its respect
“Bank liability shall to no under with anything placed Night except in for Depository, the the actually amount of cash checks into its and taken possession upon opening Depository Night the Safe. dispute In the any event the as or not to whether bag dropped said the entered down chute the and Night Depository Safe, possession or came intо the report Bank, the employee of Bank who shall open day following the Safe the business shall be binding upon undersigned.” conclusive and argued The Bank placed that this clause the risk of loss solely depositor. Pleas The Common Court Phillips summary judgment, filed an answer the motion to attaching deposit two was affidavits to the еffect that the in fact question, night made in and there whether that was or required deposit a by a at determination of fact trial. trier judgment its summary appended With motion the Bank had they employees joint- affidavits of two of its stating that had ly opened day following alleged the safe on the first business deposit bag and did not or find either funds in which the deposit supposedly enclosed. agreed granted summary- and the Bank’s motion for judgment.
Phillips only appealed asserting pleadings that the issues raised suffiсient affidavits right summary fact which foreclosed the to required proceed Specifical- that the matter to trial. ly appellee argued em- that of thе Bank affidavits ployees not, by themselves, could irrebuttable create an presumption preclude sufficient to them from endeavor- ing prove deposit at that in fact been trial had Phillips, made. before the challenge did not argument
and conceded in before this that the de- juncture cision not to raise the а de- specific liberate one, objective. chosen a tactical Nevertheless, deciding Superi- it, the cause before perceived or Court the threshold “whether a issue be: may contractually bank liability absolve itself from all night depository connection with facility, the use of so required facility its customеrs are to use the at their concluding sole risk.” exculpatory provi- After that the sion law, was invalid as a matter of then determined there was a issue of ma- terial fact and reversed the order of the below court granting summary judgment.2 urged
It is now that the Court exceeded the proper bounds of appellate reaсhing by review properly presented parties. agree to it We *4 First, premised 2. upon This decision grounds. alternative as bailee, liability a However, a negligenсe. bank cannot disclaim for its own nothing complaint there was that could conceiva- bly interpreted allegation have been negligence. as an of To the contrary, trespass complaint upon the count of the a rested theo- ry of conversion. finding unenforceable, The second basis for the clause as a law, predicated upon theory matter of agree- the the opinion ment was a contract of adhesion. The indicated that it position considered view stronger second the as the of In the two. matter, disposition pass of our of the we need not the respective merits of these conclusions.
47 and therefore must their order and the reverse remand disposition for properly cause based sub- the issue mitted for resolution. Wieg
A
presented Wiegand
similar situаtion was
v.
and,
(1975),
Pa. 482,
461
A.2d
In
337
256
that matter
appealed
a
Family
order
the
Divi
husband
entered
sion
citing
of
Allegheny
the
of
two
Common Pleas
grounds
non-constitutional
as
basis
The
thе
relief.
Superior Court,
sponte,
authority
statutory
sua
found the
the
under which
court had acted
lower
violation
Pennsylvania
of
Constitution
reversed
order
and
reversing
below.
court
we stated:
deprives
sponte
“Sua
of
consideration
issues
counsel of
argue the
opportunity to brief and
issues
advocacy
of
cоurt
of
.
the benefit
counsel’s
Furthermore,
sponte
many of
sua
determinations raise
require
to
led
considerations that
with-
exception
prop-
out
issues
erly
Dilliplaine
Lehigh
.
..
preserved
.
See
v.
(1974);
Valley
Co.,
255,
457
Trust
(1974).” 485, at Id. 337 A.2d 257. at Nor do we believe that fact that issue consid- supra sponte ered in Wiegand, awas constitutional question distinguishing situation from basis disruption at or- case bar. The unwarranted derly processes judicial decisionmaking is still the although Additionally, same. did not reach mo- it was one proportions, constitutional ment, only that should have been counsel resolved after side opportunity had afforded an been each brief positions.3 аrgue their respective possible far-reaching implications upon fi- Because decision, community Philadelphia Clearing nancial of this Association, Assоciation, Clearing Pittsburgh House House Pennsylvania and the requested Association this Court Bankers briefs, right granted and were curiae. submit amici as *5 danger deciding practice
An of cases additional parties has by on issues not is that counsel upon adequate not record been alerted to establish an unanticipated It is unfair which to issue. decide respоnding party both to the to the with the burden and depend side to allow outcome of a lawsuit beyond purview of resolution of their an issue that was controversy.4 the area of validity
The issue before of the clause was not at dispute Superior agreed point Court. The focal ac- fact was the existence of оf material issue Superior cepting validity. the clause’s To allow pre- it was Court’s order to stand the basis which advocacy significance in ignore mised would be to system jurisprudence. our Superior The is reversed order Court Superior for consideration cause remanded to the Court presented. properly of the issue dissenting opinion joined ROBERTS, J., filed a JONES, J.
ROBERTS, (dissenting). Justice my view the order of the Court should to the Court. vacated and the cause remanded agree majority I should do not thаt this with the ef- limit the determination there to consideration exculpatory fect clause. whether
The threshold issue before this is ap presented on of this clause was peal majority The states Court. therefore, and, issue raised sponte. See Wie should have decided issue gand 482, 337 (1975). Wiegand, 461 Pa. Here, particular problem significant not a factor since this was, fact, raised at the trial level. present inadequate The to de- record for this Court was, fact, termine That is- raised. whеther *6 yet presented pleas, Phil- sue was common the court of lips’ Superior the is- brief to the Court does not address Superior dis- sue. Continental Bank’s brief to the Phillips validity cusses the of the that clause states validity did the trial determination. court’s Although Phillips argument stated in before oral Superior Court that it the issue in the chose tо raise Court, opinion implies that validity Although of the not briefed clause was raised. by Phillips may the issue have argument thereby presented been raised in oral knowing way decision. This Court has no present argu- record whether the issue oral was raised at distinguishable ment. This case therefore from Wie- gand undisputed where it was neither the issue was argued sponte Superi- briefed nor but reached making or Court in its decision.
The inadequacy present of the requires record we give opportunity to state what is- sues were it its resolution. On remand should validity determine whether the of the clause was presented to If validity it. was not ar- clause gued, interpreting review should be limited to the clause determine if there is issue material fact to be argument, If the tried. oral raised however, prop- erly before principles Court and the of Wie- gand inapplicable. are event its order should be reinstated and the case here for returned review. joins J., dissenting opinion. C. in this