Phillips Home Furnishings, Inc. v. Continental Bank
| Decision Date | 07 April 1976 |
| Parties | , 20 UCC Rep.Serv. 1263 PHILLIPS HOME FURNISHINGS, INC., Plaintiff-Appellee, v. CONTINENTAL BANK, Defendant-Appellant. |
| Court | Pennsylvania Supreme Court |
Blank, Rome, Klaus & Comisky, Marvin Comisky, Alan C. Gershenson, Philadelphia, for appellant.
Howard E. Davidson, Philadelphia, for appellee.
Drinker, Biddle & Reath, Melvin C. Breaus, Jack B. Justice, Philadelphia, for amicus curiae, Philadelphia Clearing House Assn.
Gordon W. Gerber, John J. Brennan, Philadelphia, for amicus curiae, Pennsylvania Bankers Assn.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Plaintiff-appellee, Phillips Home Furnishings, Inc., commenced the instant litigation by way of a complaint sounding in assumpsit and in trespass alleging that on June 16, 1973, its agent delivered the sum of $5,669.00 into the 'night depository safe' of defendant-appellant, Continental Bank, and that those funds were never credited to the Phillips' account. The Bank moved for summary judgment asserting that there was no triable issue of material fact. 1 The Bank sought summary judgment in its favor relying upon the following exculpatory clause in its 'night depository agreement':
The Bank argued that this clause placed the risk of loss solely upon the depositor. The Common Pleas Court agreed and granted the Bank's motion for summary judgment.
Phillips appealed to the Superior Court asserting only that the pleadings and affidavits raised sufficient issues of fact which foreclosed the right to summary judgment and required that the matter proceed to trial. Specifically appellee argued that the affidavits of the Bank employees could not, by themselves, create an irrebuttable presumption sufficient to preclude them for endeavoring to prove at trial that the deposit had in fact been made. Phillips, in the appeal before the Superior Court, did not challenge the validity of the exculpatory clause and conceded in argument before this Court that the decision not to raise the question at that juncture was a deliberate one, chosen for a specific tactical objective. Nevertheless, in deciding the cause before it, the Superior Court perceived the threshold issue to be: 'whether a bank may contractually absolve itself from all liability in connection with the use of a night depository facility, so that its customers are required to use the facility at their sole risk.' After concluding that the exculpatory provision was invalid as a matter of law, the Superior Court then determined that there was a genuine issue of material fact and reversed the order of the court below granting summary judgment. 2
It is now urged that the Superior Court exceeded the bounds of proper appellate review by reaching an issue not properly presented to it by the parties. We agree and therefore must reverse their order and remand the cause for disposition based upon the issue properly submitted for resolution.
A similar situation was presented in Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975). In that matter a husband appealed an order entered by the Family Division of the Allegheny Court of Common Pleas citing two non-constitutional grounds as the basis for relief. The Superior Court, sua sponte, found the statutory authority under which the lower court had acted in violation of the Pennsylvania Constitution and reversed the order of the court below. In reversing the Superior Court, we stated:
Nor do we believe that the fact that the issue considered sua sponte in Wiegand, supra was a constitutional question is a basis for distinguishing that situation from the case at bar. The unwarranted disruption of the orderly processes of judicial decisionmaking is still the same. Additionally, although the question at issue did not reach constitutional proportions, it was one of moment, that should have been resolved only after counsel for each side had been afforded an opportunity to brief and argue their respective positions. 3
An additional danger in the practice of deciding cases on issues not presented by the parties is that counsel has not been alerted to establish an adequate record upon which to decide the unanticipated issue. It is unfair both to the party with the burden and to the responding side to allow the outcome of a lawsuit to depend upon the resolution of an issue that was beyond their purview of the area of controversy. 4
The validity of the clause was not at issue before the Superior Court. The agreed focal point of the dispute was the existence of a genuine...
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