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Pennsylvania State Police v. Klimek4/15/2002
e exceptions articulated in Section 8522 applied to the facts of this case. Following the trial court's certification of its order for interlocutory appeal, the Police now present the instant appeal of the trial court's order to this Court.
This Court's scope of review of a trial court's decision to grant or deny a motion for summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. City of York v. Schaefer Temporary Services, Inc., 667 A.2d 495 (Pa. Cmwlth. 1995). In a grant of summary judgment, the pleadings, depositions, answers to interrogatories, and admissions together with affidavits, if any, must demonstrate that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Id. In deciding a motion for summary judgment, we must review the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id.
The Police raise two issues in the instant appeal: whether the trial court erred in holding that the action below fell within the personal property exception to sovereign immunity articulated in Section 8522(b)(3) of the Judicial Code, and; whether the trial court erred in holding that the action below fell within the real estate exception to sovereign immunity articulated in Section 8522(b)(4) of the Judicial Code.
Klimek asserts that the arguments raised by the Police before this Court in support of the two appealed issues have been waived due to the Police's failure to raise them before the trial court.
It is axiomatic that this Court will not entertain issues on appeal from a grant or denial of a motion for summary judgment that were not argued before the trial court. Kaplan v. Southeastern Pennsylvania Transportation Authority, 688 A.2d 736 (Pa. Cmwlth. 1997). Pursuant to Pennsylvania Rule of Appellate Procedure 302(a), " ssues not raised in the lower court are waived and cannot be raised for the first time on appeal". Borough of Edgewood v. Lilly, 565 A.2d 852 (Pa. Cmwlth. 1989), petitions for allowance of appeal denied, 525 Pa. 659, 582 A.2d 325; 525 Pa. 660, 582 A.2d 326 (1990). The instant appeal, however, presents us with the narrow question of whether, notwithstanding the preservation of the general issue below, new theories relating to the issue can be presented for the first time upon appeal to this Court.
Our Supreme Court has expressly stated that " t is a fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court." Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384, 333 A.2d. 777, 779 (1975) (citations omitted). In Kimmel, the Supreme Court was asked to review a common pleas court dismissal of an action brought by appellant property owners attacking a property tax assessment. Before the trial court, the appellants focused on two theories asserting that improper or misleading appeal procedures existed regarding their assessments. On appeal, the appellants abandoned those two theories completely, and advanced two new theories asserting a denial of their timely appeal rights, and the taxing authority's untimely reassessment schedule. The Supreme Court held that said abandonment of the appellants' original theories resulted in a failure to advance any reason requiring reversal. Id., 460 Pa. at 385, 333 A.2d. at 777.
Similarly, this Court has also refused to review specific arguments or theories that were not argued before a trial court, notwithstanding the preservation of a general issue towards which the differing theori
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