(dissenting).
In my view the order of the Superior Court should be vacated and the cause remanded to the Superior Court. I do not agree with the majority that this Court should limit the determination there to consideration of the effect of the exculpatory clause.
The threshold issue before this Court is whether the validity of this exculpatory clause was presented on appeal to the Superior Court. The majority states that the issue was not raised and, therefore, the Superior Court should not have decided the issue sua sponte. See Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).
*49The present record is inadequate for this Court to determine whether the issue was, in fact, raised. That issue was presented to the court of common pleas, yet Phillips’ brief to the Superior Court does not address the issue. Continental Bank’s brief to the Superior Court discusses the validity of the clause and states that Phillips did not appeal the trial court’s validity determination. Although Phillips stated in oral argument before this Court that it chose not to raise the issue in the Superior Court, the opinion of the Superior Court implies that the validity of the clause was raised. Although not briefed by Phillips to the Superior Court, the issue may have been raised in oral argument and thereby presented for decision. This Court has no way of knowing on the present record whether the issue was raised at oral argument. This case is therefore distinguishable from Wiegand where it was undisputed that the issue was neither briefed nor argued but reached sua sponte by the Superi- or Court in making its decision.
The inadequacy of the present record requires that we give the Superior Court an opportunity to state what issues were presented for its resolution. On remand it should determine whether the validity of the clause was presented to it. If the validity of the clause was not argued, review should be limited to interpreting the clause to determine if there is a genuine issue of material fact to be tried. If the issue was raised at oral argument, however, the validity of the exculpatory clause was properly before the Superior Court and the principles of Wiegand are inapplicable. In that event its order should be reinstated and the case returned here for review.
JONES, C. J., joins in this dissenting opinion.