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LINDA GILMORE v. NORTHEAST DODGE CO. (05/09/80)

filed: May 9, 1980.

LINDA GILMORE
v.
NORTHEAST DODGE CO., INC., APPELLANT



No. 1127 OCTOBER TERM, 1978 Appeal From Order of Honorable Calvin Wilson, Judge of the Court of Common Pleas, Civil Action, Equity, Philadelphia, March 8, 1978, January Term, 1976 No. 1187

COUNSEL

Raymond J. Takiff, Philadelphia, for appellant.

Stephen F. Ritner, Philadelphia, for appellee.

Cercone, President Judge, and Wieand and Louik, JJ.*fn*

Author: Louik

[ 278 Pa. Super. Page 211]

This is an action in equity for rescission against an automobile dealership by a purchaser of a used car.

After dismissal of exceptions to the court's findings in favor of plaintiff, the instant appeal was filed.

Appellant has two basic contentions in his appeal. The first contention is that rescission is not a proper remedy for the appellee's complaint, and therefore, the Court of Common Pleas should not have exercised its equity jurisdiction. The second issue raised by the appellant questions the Findings of Fact made by the lower court. The appellant argues that the record does not support the Findings of Fact and the Court committed error by not granting a demurrer.

Since resolution of the issue of equity jurisdiction is dependent upon the circumstances of the suit, we deal with the factual issues first. In Aiken Industries, Inc. v. Estate of Wilson, 477 Pa. 34, 39, 383 A.2d 808, 810, 816-817, even though an equally divided Supreme Court disagreed on the result, all substantially accepted the following standard of review:

"[T]he function of this Court on an appeal from an adjudication in equity is not to substitute its view for that of the lower court; our task is rather to determine whether 'a judicial mind, or due consideration of all the evidence as a whole, could reasonably have reached the conclusion of the Chancellor.' A Chancellor's findings of fact, approved by a court en banc, have all the force and effect of a jury's verdict if they are supported by adequate evidence and ordinarily will not be disturbed on appeal." (Citations omitted).

[ 278 Pa. Super. Page 212]

Where a single judge rather than a court en banc reviews the case ". . . [f]indings of fact of a hearing judge, like the verdict of a jury, will not be disturbed on appeal absent an error of law or an abuse of discretion." Estate of Shelly, 484 Pa. 322, 333, 399 A.2d 98, 103.

With this standard of review in mind, we have carefully reviewed the record and find substantial evidence to support the Chancellor's findings which were approved by the court en banc. We also approve the lower court's decision not to sustain the ...


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