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.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion joined by Jones, J.
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.*fn1 The Bank sought summary judgment in its favor relying upon the following exculpatory clause in its "night depository agreement":
"Bank shall be under no liability with respect to anything placed in the Night Depository, except for the amount of cash and checks actually taken into its possession upon opening the Night Depository Safe. In the event of any dispute as to whether or not the said bag dropped down the chute and entered the Night Depository Safe, or came into the possession of Bank, the report of the employee of Bank who shall open the Safe upon the following business day shall be conclusive and binding upon the undersigned."
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 from 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 ...