misapplication rule in Pennsylvania

2023See, Solebury, supra (reversing the Board based on a misapplication of the standard, but not rejecting the standard); Lucchino v. Commonwealth, 809 A.2d 264, 288 (Pa. 2002) (affirming the application of the bad-faith standard in awarding fees: “The [Board] and the Commonwealth Court correctly determined that Lucchino initiated this litigation in bad faith and, thus, the EHB did not abuse its discretion by awarding Luzerne costs and 2 Certainly the bad faith standard does not eliminate fee recovery, as this Court affirmed the award of fees based on a party’s bad faith in Lucchino. 3 The Court w

2023See, Solebury, supra (reversing the Board based on a misapplication of the standard, but not rejecting the standard); Lucchino v. Commonwealth, 809 A.2d 264, 288 (Pa. 2002) (affirming the application of the bad-faith standard in awarding fees: “The [Board] and the Commonwealth Court correctly determined that Lucchino initiated this litigation in bad faith and, thus, the EHB did not abuse its discretion by awarding Luzerne costs and 2 Certainly the bad faith standard does not eliminate fee recovery, as this Court affirmed the award of fees based on a party’s bad faith in Lucchino. 3 The Court w

1989Before explaining why the appellants can not prevail despite the misapplication of the doctrine of election of remedies, we point to Burrus v. American Casualty, 518 F.2d 1267 (7th Cir., 1975), of which the facts are on all fours with those before us.

1989Therein, the 7th Circuit, applying Indiana’s doctrine of election of remedies, held “when a settlement contract is breached, the plaintiff has two coexistent but inconsistent remedies available: he may treat the compromise agreement as rescinded and sue on the original tort, or he may sue on the contract, (cite omitted) The plaintiff may not, however, prosecute one of these remedies to judgement and then sue on the other.” 518 F.2d at 1269 .

1986DPW cites our decision in Divine Providence Hospital v. Department of Public Welfare, 76 Pa. Commonwealth Ct. 188 , 463 A.2d 118 (1983), as dispositive of that assertion.

1986DPW cites our decision in Divine Providence Hospital v. Department of Public Welfare, 76 Pa. Commonwealth Ct. 188 , 463 A.2d 118 (1983), as dispositive of that assertion.

1978A review of the record reveals, however, that all but two of the errors assigned have been preserved. 1 The lower court’s mistaken *489 ruling resulted from a misapplication of the rule set forth in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114 (1974), that a specific exception at trial is needed to preserve an objection for appeal.

1978A review of the record reveals, however, that all but two of the errors assigned have been preserved. 1 The lower court’s mistaken *489 ruling resulted from a misapplication of the rule set forth in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114 (1974), that a specific exception at trial is needed to preserve an objection for appeal.

1975The doctrine, as it has evolved since it was first expressed in McConnell v. Williams, 361 Pa. 355 , 65 A.2d 243 (1949), establishes the vicarious liability of the surgeon in the operating room to the plaintiff for the negligence of those acting under his direction.

1975The doctrine, as it has evolved since it was first expressed in McConnell v. Williams, 361 Pa. 355 , 65 A.2d 243 (1949), establishes the vicarious liability of the surgeon in the operating room to the plaintiff for the negligence of those acting under his direction.

1973Plaintiff cites Kennedy v. Skeer, 3 Watts 95 (1834), in support of this position.

1902Our attention has be'en drawn recently to a tendency to this misapplication of the principle, on the part of counsel, and even the courts:” Cunningham v. Fort Pitt Bridge Works, 197 Pa. 625 .

1864In Gibbon v. Ogden, 9 Wheaton, 188 , Chief Justice Marshall says: “We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.” Then, speaking of the misapplication of the doctrine of strict construction, in language which seems as if.written for this time and occasion, he says: “If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of