Day v. Wilkie Buick Co.

Dissenting Opinion by

Hoffman, J.:

The majority opinion concludes that “[sjitting as might a chancellor in equity, we find that justice will best be served by this case going to trial. Therefore, we hold that the lower court abused its discretion.” (Majority Opinion at 75) (Emphasis added). It is apparent that the majority holds that the lower court erred in denying appellant’s petition to open a default judgment not because the lower court abused its discretion, but because the majority would have reached the opposite result were it the lower court. Once again, I ask our Court to accept the proposition that a mere error in judgment does not constitute an “abuse- of discretion.” It is irrelevant that we would decide differently were we charged with the duty to decide the case in the first instance. Discretion is abused “if in reaching a conclusion the law is overridden or misapplied, or the judgment *76exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record...” Mielcuszny et ux. v. Rosol, 317 Pa. 91, 93-94, 176 A. 236 (1934). See also Mackarus Estate, 431 Pa. 585, 246 A.2d 661 (1968); Garrett’s Estate, 335 Pa. 287, 6 A.2d 858 (1939); Campbell v. Heilman Homes, Inc., 233 Pa. Superior Ct. 366, 335 A.2d 371 (1975) (Hoffman, J., dissenting); Sta-Rite Industries, Inc. v. Century Water Treating, 230 Pa. Superior Ct. 285, 326 A.2d 425 (1974) (JACOBS, J., dissenting). When viewed against this definition, it is clear that the lower court did not abuse its discretion. I would affirm the order of the court below.

Spaeth, J., joins in this dissenting opinion.