consequence waiver in Pennsylvania

2013“A decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not.” Walsh v. Borczon, 881 A.2d 1, 6 (Pa.Super.2005) (quoting Harber Philadelphia Ctr.

2012“A decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not.” Walsh v. Borczon, 2005 PA Super 256 , 881 A.2d 1, 6 (citation omitted).

2021P’ship, 764 A.2d 1100, 1105 (Pa. Super. 2000) (“[A] non-moving party’s failure to raise grounds for relief in the trial court as a basis upon which to deny summary judgment waives those grounds on appeal.”); Universal Underwriters Ins, Co. v. A. Richard Kacin, Inc., 916 A.2d 686, 690 (Pa. Super. 2007) (“Our 2017-08905-TT caselaw is clear that, in defending against a motion for summary judgment, the non-moving party’s decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not.”) (cleaned up).

2016These strategic choices in the lower court are consequential because the “decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not.” Id.

2013See Lahav v. Main Line Ob/Gyn Associates, 556 Pa. 245 , 727 A.2d 1104, 1107 (1999) (holding that while a plaintiffs delay damages could not be assessed directly against the CAT Fund because the CAT Fund was not the defendant in the underlying medical malpractice action, the CAT Fund may be liable to the plaintiff for delay damages that are part of an award against a health care provider as a consequence of a claim for professional liability; but only to the extent that those damages do not exceed the $1 million statutory cap).

2013See Lahav v. Main Line Ob/Gyn Associates, 556 Pa. 245 , 727 A.2d 1104, 1107 (1999) (holding that while a plaintiffs delay damages could not be assessed directly against the CAT Fund because the CAT Fund was not the defendant in the underlying medical malpractice action, the CAT Fund may be liable to the plaintiff for delay damages that are part of an award against a health care provider as a consequence of a claim for professional liability; but only to the extent that those damages do not exceed the $1 million statutory cap).

2021P’ship, 764 A.2d 1100, 1105 (Pa. Super. 2000) (“[A] non-moving party’s failure to raise grounds for relief in the trial court as a basis upon which to deny summary judgment waives those grounds on appeal.”); Universal Underwriters Ins, Co. v. A. Richard Kacin, Inc., 916 A.2d 686, 690 (Pa. Super. 2007) (“Our 2017-08905-TT caselaw is clear that, in defending against a motion for summary judgment, the non-moving party’s decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not.”) (cleaned up).

2021Co. v. A. Richard Kacin, Inc., 916 A.2d 686, 690 (Pa. Super. 2007) (“Our 2017-08907-TT caselaw is clear that, in defending against a motion for summary judgment, the non-moving party’s decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not.”) (cleaned up).

1979In Commonwealth v. Woods, 461 Pa. 255 , 336 A.2d 273, 274 (1975), we discussed paragraph (e) of Rule 1100, which requires that a new trial commence within ninety days after the entry of the appellate court order granting it, stating: “[tjhe time limits set forth in the rule are definite.” The consequence of violation of Rule 1100 is discharge.

1979In Commonwealth v. Woods, 461 Pa. 255 , 336 A.2d 273, 274 (1975), we discussed paragraph (e) of Rule 1100, which requires that a new trial commence within ninety days after the entry of the appellate court order granting it, stating: “[tjhe time limits set forth in the rule are definite.” The consequence of violation of Rule 1100 is discharge.

2019The only exception under which a licensee may rely on a medical condition as an affirmative defense is where the licensee “did not know that he had a condition [that] affected his ability to produce enough breath to complete the breathalyzer test.” Bridges, 752 A.2d at 460 .

2016The only exception under which a licensee is not precluded from relying on such condition as an affirmative defense is where “he did not know that he had a condition which affected his ability to produce enough breath to complete the breathalyzer test.” Bridges v. Department of Transportation, Bureau of Driver Licensing, 752 A.2d 456, 460 (Pa. Cmwlth. 2000).9 Although Dr. Young testified that Licensee could not have blown hard enough in the breathalyzer to get a reading if he was “having a significant asthma exacerbation at the time” of testing,10 Licensee did not present any competent 9 In Br

2019In other words, “[i]f the officer was not so notified, the licensee is precluded from relying upon any such condition or inability as an affirmative defense to a suspension as a consequence of a test refusal.” Hatalski, 666 A.2d at 390 (emphasis added).

2016In other words, “[i]f the officer was not so notified, the licensee is precluded from relying upon any such condition or inability as an affirmative defense to a suspension as a consequence of a test refusal.” Hatalski, 666 A.2d at 390 .

2024See, Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 421, 422 (Pa. 2007) (“while the number of issues raised in the subject Rule 1925(b) statement may have been the result of a poorly reasoned appellate strategy, because the trial court did not find that appellants acted in bad faith, there was no violation of a Rule of Appellate Procedure”) (reviewing 24 errors listed in the concise statement).

2021“It is axiomatic that claims not raised in the trial court may not be raised for the first time on appeal.” Commonwealth v. Johnson, 33 A.3d 122, 126 (Pa. Super. 2011) (citation omitted).

2016As we have explained, “the mere demonstration of a potential procedural error, without also alleging a resulting harm, is not sufficient reason to disturb an agency adjudication.” See D.Z. v. Bethlehem Area School District, 2 A.3d 712, 719 (Pa. Cmwlth. 2010) (quoting Seltzer v. Department of Education, 782 A.2d 48, 53 (Pa. Cmwlth. 2001)).

2016As we have explained, “the mere demonstration of a potential procedural error, without also alleging a resulting harm, is not sufficient reason to disturb an agency adjudication.” See D.Z. v. Bethlehem Area School District, 2 A.3d 712, 719 (Pa. Cmwlth. 2010) (quoting Seltzer v. Department of Education, 782 A.2d 48, 53 (Pa. Cmwlth. 2001)).

2014Blair Medical contends that we should abrogate the relevant holding of Pringle because “error in judgment” instructions properly instruct the jury on the principle that “if a physician employs the required judgment and care in arriving at his diagnosis, the mere fact that [the physician] erred in his diagnosis will not render him [or her] liable, even though his treatment is not proper for the condition that exists. ...” Blair Medical’s Brief at 10, quoting Smith v. Yohe, 412 Pa. 94 , 194 A.2d 167, 170-71 (1963).

2014Blair Medical contends that we should abrogate the relevant holding of Pringle because “error in judgment” instructions properly instruct the jury on the principle that “if a physician employs the required judgment and care in arriving at his diagnosis, the mere fact that [the physician] erred in his diagnosis will not render him [or her] liable, even though his treatment is not proper for the condition that exists. ...” Blair Medical’s Brief at 10, quoting Smith v. Yohe, 412 Pa. 94 , 194 A.2d 167, 170-71 (1963).

2011See CE Credits OnLine v. Unemployment Compensation Board of Review, 946 A.2d 1162, 1167 (Pa.Cmwlth.2008) (citation omitted) ("More typical is the case where the Board finds an absence of control over the claimant but cannot find the claimant's services that of an independent trade or occupation ....

2005As set forth supra, “A decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not.” Id. at 1105. ¶ 12 Having found patient’s first two issues waived, we turn to her issue three, in which she claims the court erred in finding she presented insufficient evidence from which a jury could find either hospital or physician committed gross negligence in caring for patient. ¶ 13 “ ‘A reviewing court may disturb the order of the trial court [on appeal from a grant of summary judgment] only where it is established t

2005As set forth supra, “A decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not.” Id. at 1105. ¶ 12 Having found patient’s first two issues waived, we turn to her issue three, in which she claims the court erred in finding she presented insufficient evidence from which a jury could find either hospital or physician committed gross negligence in caring for patient. ¶ 13 “ ‘A reviewing court may disturb the order of the trial court [on appeal from a grant of summary judgment] only where it is established t

2005As set forth supra, “A decision to pursue one argument over another carries the certain consequence of waiver for those arguments that could have been raised but were not.” Id. at 1105. ¶ 12 Having found patient’s first two issues waived, we turn to her issue three, in which she claims the court erred in finding she presented insufficient evidence from which a jury could find either hospital or physician committed gross negligence in caring for patient. ¶ 13 “ ‘A reviewing court may disturb the order of the trial court [on appeal from a grant of summary judgment] only where it is established t

2000See Dollar Bank, 657 A.2d at 1245 .

1995Id., 434 Pa.Super. at 376, 643 A.2d at 691 .

1995Id., 434 Pa.Super. at 376, 643 A.2d at 691 .

1942Decree affirmed; costs to be awarded'by the court below. 1 See Powell’s Estate, 340 Pa. 404, 409, 410 , 17 A. 2d 391 , citing cases. 2 Weir’s Estate, 251 Pa. 499, 503 , 96 A. 1086 ; Reiff’s Appeal, 124 Pa. 145 , 16 A. 636 . 3 Cf. Byrne’s Bstate, 320 Pa. 513, 516 , 181 A. 500 ; Davenport v. Graham, 343 Pa. 497 , 23 A. 2d 482 ; Calder’s Bstate, 343 Pa. 30, 34, 21 .

1942Decree affirmed; costs to be awarded'by the court below. 1 See Powell’s Estate, 340 Pa. 404, 409, 410 , 17 A. 2d 391 , citing cases. 2 Weir’s Estate, 251 Pa. 499, 503 , 96 A. 1086 ; Reiff’s Appeal, 124 Pa. 145 , 16 A. 636 . 3 Cf. Byrne’s Bstate, 320 Pa. 513, 516 , 181 A. 500 ; Davenport v. Graham, 343 Pa. 497 , 23 A. 2d 482 ; Calder’s Bstate, 343 Pa. 30, 34, 21 .

1942Decree affirmed; costs to be awarded'by the court below. 1 See Powell’s Estate, 340 Pa. 404, 409, 410 , 17 A. 2d 391 , citing cases. 2 Weir’s Estate, 251 Pa. 499, 503 , 96 A. 1086 ; Reiff’s Appeal, 124 Pa. 145 , 16 A. 636 . 3 Cf. Byrne’s Bstate, 320 Pa. 513, 516 , 181 A. 500 ; Davenport v. Graham, 343 Pa. 497 , 23 A. 2d 482 ; Calder’s Bstate, 343 Pa. 30, 34, 21 .