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Pennsylvania State Police v. Klimek4/15/2002
es were directed. In Borough of Edgewood, the Borough brought an action seeking a declaratory judgment of adverse possession over a disputed piece of real property. Before the trial court, the Borough argued several differing and alternative theories regarding the timely acceptance of an offer of dedication of a public street contained in a deed, alleging that said timely acceptance never occurred. On appeal before this Court, the Borough attempted to argue an additional theory that was not raised or argued before the trial court, namely that the trial court erroneously employed the wrong deed to compute the timeliness of the alleged offer acceptance. Despite the preservation of the timely acceptance issue, we refused to review the Borough's new theory on appeal, relying primarily on the mandate found in Pa.R.A.P. 302(a). Borough of Edgewood, 565 A.2d at 854-855. Accord Rhoads v. Lancaster Parking Authority, 520 A.2d 122 (Pa. Cmwlth.), petition for allowance of appeal denied, 515 Pa. 611, 529 A.2d 1084 (1987) (appellants' argument that common law exception to governmental immunity applied to facts at issue was waived, and therefore not reviewable by appellate court, where said exception was not raised or argued before the trial court in summary judgment proceedings, in which appellants relied exclusively on two different statutory exceptions to immunity). Our Commonwealth's Superior Court has recently had occasion to examine Pa.R.A.P. 302(a)'s mandate in the context of summary judgment proceedings, stating:
trial court's failure to scour the record for every conceivable ground on which to deny summary judgment cannot serve as a basis for appellate review. Because . . . the non-moving party must respond to a motion for summary judgment, he or she bears the same responsibility as in any proceeding, to raise all defenses or grounds for relief at the first opportunity. A party who fails to raise such defenses or grounds for relief may not assert that the trial court erred in failing to address them . . . The Superior Court, as an error-correcting court, may not purport to reverse a trial court's order where the only basis for a finding of error is a claim that the responsible party never gave the trial court an opportunity to consider. Harber Philadelphia Center City Office Limited v. LPCI Limited Partnership, 764 A.2d 1100 (Pa. Super. 2000), petition for allowance of appeal denied, 566 Pa. 664, 782 A.2d 546 (2001) (emphasis supplied).
We agree with the Superior Court's cogent analysis and articulation of the application of Pa.R.A.P. 302(a) to summary judgment proceedings.
We now turn our attention to the Police's arguments before the trial court, and in the instant appeal.
In regards to the Police's first issue, the applicability of the personal property exception of Section 8522(b)(3) to sovereign immunity, the Police now argue that the exception is inapplicable to the instant facts for two reasons: first, because the personal property at issue, namely the boot lace, was not in the possession or control of the Police when Klimek used it to hang himself, and: secondly, because Klimek's death was not caused by the boot lace, but was caused by his own actions in using the lace to hang himself. In support thereof, the Police cite primarily to Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987), and Harding v. Galyias, 544 A.2d 1060 (Pa. Cmwlth. 1988), petition for allowance of appeal denied, 521 Pa. 625, 557 A.2d 727 (1989).
In the action below, the Police advanced two theories in relation to this issue. First, it argued that Simmons v. Township of Moon, 601 A.2d 425 (Pa. Cmwlth. 1991), controlled the case. In Simmons, this Court affirmed the dism
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