author: BROSKY, Judge:

text:
    520 A.2d 506
    INSURANCE COMPANY OF NORTH AMERICA v. Ronald R. RALL and Margaret A. Rall, His Wife, and Farmers Fire Insurance Company v. BARNET, INC., for Itself and doing business as Gateway Underwriters, and George Jones, Individually and trading and doing business as Real Realty. Appeal of FARMERS FIRE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1986.
    Filed Jan. 30, 1987.

      C. Robert Keenan, III, Pittsburgh, for appellant.
    John W. Smart, Pittsburgh, for Insurance Co. of North America, appellee.
    Paul W. Roman, Jr., Pittsburgh, for Barnet, appellee.
    John B. Nicklas, Jr., Pittsburgh, for Jones, appellee.
    Before WICKERSHAM, BROSKY and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from an order denying appellant’s posttrial motions. Judgment was entered against appellant after' a nonjury trial in which appellant was found liable for property damages suffered as a result of a fire to premises it had insured.

Appellant raises four issues for disposition: (1) whether an insurer is obligated to provide notice to a mortgagee of a lapse in insurance coverage upon the mortgaged premises, (2) whether the mortgagee’s failure to keep adequate records as to its debtor’s property insurance constitutes negligence so as to prevent recovery by the mortgagee, (3) whether the insurer can be held liable for acts or omissions of a broker where such insurance broker had the only contact with the insured, (4) whether the stipulation of an amount paid by an insurer to its insured is sufficient evidence of the insurer’s damage in a subrogation action against another insurer allegedly liable for the debt to the subrogor.

We have carefully considered the above issues and the arguments presented by counsel respective to each and find the entry of the challenged order was improper. Accordingly, we reverse the order entered by the trial court.

The facts giving rise to this appeal can be summarized as follows: In 1976, Ronald and Margaret Rail, bought a home which was financed by appellee First Federal Savings and Loan Association. First Federal took a mortgage interest in the property to secure the loan. The Ralls’ secured property insurance, through the aid of their real estate broker, George Jones, who utilized Barnet, Inc., an insurance broker, from appellant Farmer’s Fire Insurance Company for the period of July 15, 1976 to July 15, 1979. The Ralls paid the first two years premiums but failed to pay the third, whereupon, that installment was paid by Jones who then notified the Ralls that the policy would not be renewed unless payment was made. Payment was not made by the Ralls or anyone else subsequent to that time.

On October 20, 1980, more than a year after the policy’s expiration date, a fire occurred at the mortgaged premises. Payment of the mortgage had been insured by Insurance Company of North America (IN A). IN A paid First Federal the balance of the mortgage and then sued Farmer’s Fire and the Ralls as subrogee. A non-jury trial held on September 26, 1984 in the Court of Common Pleas of Allegheny County resulted in a verdict in favor of IN A against the Ralls and Farmers Fire, but in favor of Jones and Barnet, who had been joined by Farmers Fire. This appeal by Farmers Fire followed.

The initial issue before us is whether or not an insurance company must notify a mortgagee of the expiration of a homeowner’s policy issued on premises of which the mortgagee possesses a mortgage interest and where the policy contains a standard mortgage clause and identifies the mortgagee. Appellant, in contest of this position, contends that appellee, IN A, has failed to distinguish between cancellation or non-renewal of a policy on the one hand and expiration of a policy on the other.

“Renewal” is defined at 40 P.S. § 1171.3 as “the issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer____” Hence, as contended by appellant, the “expiration” of a policy may indeed be different than the “non-renewal” of a policy; but nevertheless, if an insurer does not issue and deliver a similar policy to the policy holder, it has not renewed the policy as defined in section 1171.3. Title 40 § P.S. § 1171.5(a)(9) makes it an unfair practice to cancel or refuse to renew any policy unless one of several enumerated situations exist. One such situation where an insurer may refuse to renew a policy is where the insured fails to pay a premium. However, 40 P.S. § 1171.5(a)(9) further states that no refusal to renew shall be effective unless a written notice of such refusal is received by the insured. An additional section, 40 P.S. § 1171.5(c)(2), would excuse the insurer from providing notice of cancellation or refusal to renew if the insurer has manifested its willingness to renew by issuing or offering to issue a renewal policy. Still another section, 40 P.S. § 1171.5(c)(2), would likewise excuse the insurer from providing notice if the insured has demonstrated by overt act other than mere non-payment of the premium that he does not wish coverage to be renewed.

What appears clear from these provisions is that after an individual is insured by a homeowner’s policy he must be offered an opportunity to renew his coverage upon expiration of that policy, or at least be notified that his coverage will not be renewed. Any doubt in this regard is eliminated after reviewing the language of the Commonwealth Court in Aegis Security Insurance Company v. Commonwealth Insurance Department, infra.

In Aegis Security Insurance Company v. Commonwealth Insurance Department, 84 Pa.Cmwlth. 163, 478 A.2d 944 (1984), the Commonwealth Court was faced with a similar fact pattern to the one presented here. In Aegis, a homeowner’s policy for an effective one-year period was issued to an individual on March 10, 1981. On December 23, 1981, an agent of Aegis mailed a memorandum which stated in relevant part:

The subject policy covering your 1972 Freedom mobile home will expire on March 10, 1982. We will not order a renewal of this policy unless you authorize us to do so either by telephone or mail. Please advise by January 14, 1982.

A second and identical notice was sent in February of 1982 when no response was received. On April 17, 1982, after the policy’s “expiration date,” the insured’s mobile home was destroyed by fire. Finding that the “notices” sent to the insured were insufficient to constitute an offer to renew under Section 5(c)(1), the insurer was not relieved of its obligation to notify the insured of non-renewal of the policy. Having failed to satisfy the Section 5(c)(1) offer of renewal or the Section 5(a)(9) notice of cancellation or nonrenewal, the policy had to be reinstated and coverage provided. The court’s discussion is instructive here:

Section 5(a)(9) of the Act establishes minimum requirements for a notice of cancellation or nonrenewal of policies. This section does not apply when the insurer makes a valid offer to renew under Section 5(c)(1) to the insured or when the insured, by an overt act, demonstrates that he does not desire the renewal of the policy under Section 5(c)(2). For example, when the insured does not pay the renewal premium due after a valid offer to renew is made, the insurer is not required to send a notice of cancellation. But, on the other hand, when the insurer does not send a valid offer to renew, the policy coverage must continue unless the insured receives a notice of cancellation.

478 A.2d at 946. Consequently, it seems clear that appellant was required to send notice to the insured that coverage was lapsing or alternatively, to offer renewal of the policy. Furthermore, it is also apparent, upon reviewing our case law, that appellant was obligated to give similar treatment to First Federal as mortgagee.

This Court in Guarantee Trust and Safe Deposit Company v. Home Mutual Fire Insurance Company, 180 Pa.Super. 1, 4-5, 117 A.2d 824, 825-826 (1955), set forth the well-settled law in Pennsylvania with respect to the effect of a Standard Mortgage Clause in a fire insurance policy:

that a standard mortgage clause in a fire insurance policy creates a separate, distinct and independent contract of insurance in favor of Mortgagee ... As stated in Abbottsford Building and Loan Association vs. William Penn Fire Insurance Company, 130 Pa. Super. 422, 426, 197 A. 504, 506: “It follows that the policies with the mortgagee clause attached created, in the instant case, two contracts with appellee, the one insuring the interest of the mortgagor owner, and the other protecting appellant’s interest as mortgagee; and the mortgagor owner, by act or failure to act, could not nullify or decrease the amount of protection which the policies afforded appellant.”

The Court goes on to state:

Where insurance of the mortgagee’s interest against loss by fire is obtained by use of the mortgagee clause it provides the same benefit to the mortgagee as if it had taken out a separate policy free from the conditions imposed upon the mortgagor owner.

Consequently, and contrary to appellant’s contention, it did indeed, as insurer, have an obligation to notify the mortgagee, First Federal, of the lapse in coverage.

Appellant argues alternatively that, if it is liable to INA, then it is entitled to contribution or indemnity from additional appellees Jones and Barnet. As just indicated, appellant’s liability is based upon its duty as insurer to notify not only the homeowner, but the mortgagee as well. Consequently, appellant is not entitled to contribution or indemnity unless it establishes that this duty has been delegated to either Barnet, Inc. or Jones. By stipulation at trial it was established that Jones acted on behalf of the Ralls, and had no business affiliation with either Barnet or appellant. Therefore, appellant has failed to establish any grounds for contribution from appellee Jones.

Barnet, Inc. apparently acted as agent for appellant, and, in fact, wrote the policy in question despite the fact that appellant, in its brief, argues that Barnet was a broker and not an agent. However, in either case, a review of the record fails to reveal any evidence that Barnet was responsible for sending out nonrenewal notices to mortgagees in appellant’s behalf. In fact, the evidence indicated that neither notices nor renewal policies were routinely sent out by either Farmer’s Fire or Barnet. Accordingly, the trial court's denial of appellant’s post-trial motion in this regard was proper.

Appellant lastly challenges the sufficiency of the proof of damages offered at trial. It was both stipulated and testified to at trial that INA paid the sum of $8,173.98 to First Federal, which was the outstanding balance of the mortgage. Farmers Fire did, however, contest the fact that this represented any indication of the extent of the damage to the insured premises. Despite this contest, INA offered no evidence of the damage caused by the fire.

INA, as subrogee to First Federal, is entitled to any right of recovery enjoyed by First Federal. Associated Hospital Service of Philadelphia v. Pustilnik, 262 Pa.Super. 600, 396 A.2d 1332 (1979) (vacated on other grounds), 497 Pa. 221, 439 A.2d 1149 (1981). Had First Federal chosen to pursue it, First Federal’s right to recovery from appellant, while limited to its insurable interest, the balance of the mortgage, is based upon loss caused by the fire to premises it had financed, not upon INA’s loss as a result of insuring payment of First Federal’s mortgage. Consequently, First Federal and INA as First Federal’s subrogee, would not be entitled to recovery from appellant unless it has proven that a fire occurred and caused at least $8,173.98 in damage. No evidence of any kind was offered at trial in this respect.

It is well established that a plaintiff has the burden of presenting evidence sufficient to calculate damages to a reasonable degree of certainty. Gordon v. Trovato, 234 Pa.Super. 279, 338 A.2d 653 (1975). This has not been done. We cannot agree with INA that the evidence offered, that they paid the sum in question to First Federal, established prima facie proof of damages sufficient to shift the burden to appellant. The payment by INA to First Federal based upon its obligation to indemnify First Federal does not establish the obligations or liability of Farmers Fire to First Federal. INA has apparently misapprehended its right of recovery. INA states in its brief that the damage they sustained is “the sum it paid to First Federal pursuant to the terms of their contract.” This is indeed a correct statement of the loss INA has suffered. However, INA did not file a cause of action against appellant based upon its relationship with appellant. Conversely, INA has not established that Farmers Fire owed any duty to INA. INA’s right of recovery as subrogee is based upon its indemnification of First Federal and is parallel to an action instituted by First Federal against Farmers Fire. Had First Federal sued appellant it would have been required to show the extent of damage caused by the fire; consequently, INA, as subrogee, must do the same. Therefore, we must find that INA has failed in this important respect of proving the damage to which they, as First Federal’s subrogee, were entitled to recover.

For the reasons discussed above, the order in question which dismissed appellant’s post-trial motion regarding INA’s failure to prove damages must be reversed.

Order reversed and remanded to the trial court for entry of judgment in appellant’s favor.

      . Part of the Unfair Insurance Practices Act, July 22, 1974.

      . This statement is consistent with our Supreme Court’s later holding in Federal Kemper Insurance Company v. Com. Insurance Dept., 509 Pa. 1, 500 A.2d 796 (1985), which contrary to appellants’ assertions did not hold that expiration of a policy for nonpayment of premium is an overt act of the insured and not the insurer so as to take such a lapse out of Pennsylvania's insurance statutes and regulations. Rather Federal Kemper reaffirmed that notice of cancellation is not necessary when the insured demonstrates a wish to cancel, and found there that knowing nonpayment of a premium after becoming due, under the facts of that case, constituted objective conduct manifesting such an intent. Adhering to the "mere nonpayment” language, the Court found that the conduct of the insured in that case went beyond mere nonpayment and was sufficient to evidence an intent to discontinue coverage.

      . We find totally unpersuasive appellant’s second argument that First Federal was negligent for not instituting a system which would provide themselves with notice of when insurance on premises which they have financed was due to expire. Appellant had a duty to notify First Federal of the imminent lapse of coverage and First Federal was entitled to rely upon appellant in this regard. First Federal could have chosen to take additional steps to further protect itself from the unfortunate result here, but had no duty to do so. Consequently, appellant cannot shift its liability by alleging that First Federal did not institute every conceivable protection against the negligence of others.

      . Appellant argues in its brief that it is not responsible for the acts of omissions of the brokers underlying this action and implies that they were somehow negligently responsible for the result here. However, it has not been established that the brokers owed any duty to notify either the Ralls or First Federal. Rather, this duty is statutorily imposed upon the insurer.

      . INA did attach a proof of loss form filed by First Federal with INA which indicated that the damage to the premises as a result of the fire was $16,000. However, Farmers Fire denied that this was an accurate assessment of the damage caused by the fire. Consequently, INA was not relieved of its obligation to establish the damage sustained by First Federal as a result of the fire.


source: Caselaw Access Project

author: MONTGOMERY, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    520 A.2d 511
    COMMONWEALTH of Pennsylvania, Appellant, v. Carl W. POKORNY, Appellee.
    Superior Court of Pennsylvania.
    Submitted June 16, 1986.
    Filed Jan. 26, 1987.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.
    Joseph G. Kanfoush, Pittsburgh, for appellee.
    Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This is the companion case to Commonwealth v. Septak, 359 Pa.Super. 375, 518 A.2d 1284 (1986), which was recently filed. In the instant matter the Commonwealth alleges that the trial court erroneously failed to apply the deadly weapon enhancement provision of the Sentencing Guidelines to appellee’s sentence. The Commonwealth further alleges that the sentence imposed was outside of the Sentencing Guidelines and unreasonable due to the court’s failure to apply the aforementioned enhancement provision. We find that the sentencing court erred in failing to apply the deadly weapon enhancement provision for those reasons set forth in Septak, supra, and reverse and remand for resentencing.

We first note that as required by 42 Pa.C.S. § 9781(b), we find that there is a substantial question that the sentence imposed was not appropriate under the Sentencing Guidelines and will permit this appeal by the Commonwealth. Commonwealth v. Mattis, 352 Pa.Super. 144, 146-47, 507 A.2d 423, 424 (1986).

Appellee’s pleas of guilty to unlawful restraint and criminal conspiracy resulted from his participation in the events of November 10th through 12th of 1982, when one Robert Johns was abducted and held for ransom. The record reveals that appellee pointed a loaded gun at the victim. It is also undisputed that the criminal information and the Commonwealth’s offer of proof during the guilty plea hearing included evidence of appellee’s possession of a gun. However, since the Commonwealth did not specifically state during the guilty plea hearing that deadly weapon enhancement would be sought at sentencing, the sentencing court refused to consider appplication of the enhancement provision. Instead, the court imposed a sentence of four (4) to twenty-three (23) months which was within the minimum range of the recommended guidelines sentence unenhanced by the deadly weapon provision.

For the reasons set forth in Septak, supra, we conclude that the sentencing court erroneously refused to apply the deadly weapon enhancement provision. It is therefore necessary to vacate the sentence and remand for resentencing. Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474-76, 491 A.2d 1352, 1355 (1985).

The Commonwealth also claims that the sentence herein is outside the guidelines and unreasonable as the result of the court’s failure to apply the deadly weapon enhancement provision. The Commonwealth supports its assertion by suggesting that this matter is controlled by 42 Pa.C.S. § 9781(c)(3), which requires us to vacate and remand where the sentence is outside the guidelines and unreasonable. The Commonwealth relies upon the wrong subsection of 9781 however, for the court herein erroneously concluded that deadly weapon enhancement should not be applied, but purportedly imposed a sentence of imprisonment within the minimum range of the unenhanced guidelines. The applicable provision is therefore 42 Pa.C.S. § 9781(c)(1), which requires us to vacate and remand where the court purported to sentence within the guidelines but applied the guidelines erroneously.

Recognizing that we reached the reasonableness claim argued in Septak, we find that case to be distinguishable from the instant matter. In Septak the sentencing court indicated that the probationary sentence deviated from the guidelines he thought applicable. Since the court detailed its reasons for the deviation, we could determine that the sentence of probation was unreasonable. See, Commonwealth v. Drumgoole, supra 341 Pa.Superior Ct. at 474-77, 491 A.2d at 1355-1356. We cannot present the same kind of analysis and determination herein, as the court did not place reasons for deviation in light of its finding that the sentence was within the minimum range of the guidelines.

We do not, therefore, make a determination on the question of unreasonableness, but vacate and remand pursuant to 42 Pa.C.S. § 9781(c)(1) in view of our disposition of the Commonwealth’s first claim. The court must then, of course, resentence appellee, knowing the correct sentencing ranges available under the guidelines. If the court finds it appropriate to deviate from the proper sentencing range, it may do so by placing sufficient reasons on the record, subject to review by this court if such review is sought. Commonwealth v. Johnakin, 348 Pa.Super. 432, 437-39, 502 A.2d 620, 623 (1985).

Judgment of sentence is vacated and the case is remanded for resentencing in accordance with the foregoing analysis. Jurisdiction is relinquished.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I agree with the result reached by the majority that appellee should be resentenced since it appears from the record that the lower court sentenced in deviation from the guidelines. However, I do not rely upon the holding in Commonwealth v. Septak, from which I have written a dissenting opinion. Rather, a review of the record shows that the lower court sentenced on the basis of an erroneous offense gravity score and for that reason remand is required.

Appellee, Carl Pokorny, pled guilty to unlawful restraint and conspiracy to commit unlawful restraint. Neither of these misdemeanor charges are contained in the bills of information. Nothing contained in the information, therefore, may be construed as putting appellee on notice of facts giving rise to application of the deadly weapon enhancement. Since appellee did not plead guilty to any of the original charges, he may not be sentenced on the basis of them.

The offer of proof presented by the Commonwealth at the guilty plea colloquy did refer to appellee’s possession of a gun during certain portions of the criminal episode. Therefore, unlike in Septak, there has been a showing that appellee was alerted to his use of a deadly weapon. Appellee did not challenge the Commonwealth’s recitation of the facts at the guilty plea hearing and, in response to questioning by the court, indicated his agreement with the factual presentation made by the assistant district attorney.

Therefore, I agree that, under these circumstances, the lower court erred in failing to apply the deadly weapon enhancement provision of the sentencing code.

I believe it is clear from the record that the lower court applied the sentencing guidelines for a felony of the second degree, with an offense gravity score of “six.” This was error since both of the crimes to which appellee pled guilty were misdemeanors. The offense gravity score for a misdemeanor of the first degree is “three.” I agree that the lower court has discretion to deviate reasonably from the sentencing guidelines upon an adequate statement of its reasons for so doing.

      . 204 Pa.Code § 303.4, reprinted following 42 Pa.C.S. § 9721.

      . 18 Pa.C.S. § 2902.

      . 18 Pa.C.S. § 903.

      . Notably, the offense of conspiracy, which was tied to the underlying offense of unlawful restraint, was a misdemeanor of the first degree under the circumstances herein. See, 18 Pa.C.S. § 905(a). Although the sentence imposed was within the standard minimum range of the sentencing guidelines for a first degree misdemeanor with a prior record score of zero, there is some confusion as to whether the court's intention was to impose sentence for a felony of the second degree. Upon remand, the court is to utilize the correct offense gravity score in imposing sentence.


author: ROBERTS, Judge:

text:
    520 A.2d 863
    Regis J. BINDER and Lilian B. Binder v. JONES & LAUGHLIN STEEL CORPORATION, a Corporation, and Washington Tool & Machine Company v. WEAN UNITED, INC. Appeal of JONES & LAUGHLIN STEEL CORPORATION, a Corporation.
    Superior Court of Pennsylvania.
    Argued May 20, 1986.
    Filed Jan. 22, 1987.

      Kathleen S. McAllister, Pittsburgh, for appellant.
    Paul E. Moses, Pittsburgh, for appellees.
    Before BROSKY, KELLY and ROBERTS, JJ.
   ROBERTS, Judge:

Generally, Restatement of Torts, 2nd (1965), § 388 imposes liability upon suppliers of chattel for negligent failure to disclose the chattel’s dangerous conditions. This appeal, involving injuries to an employee of the supplier’s bailee caused by the explosion of a cast-iron roll, presents questions regarding the existence and scope of the duty to disclose under § 388. The most significant of these questions is whether the supplier meets its standard of care by informing the bailee of the chattel’s general characteristics, but not providing specific information or warnings regarding the chattel’s alleged dangerous propensities. We also review several allegations of trial error, and conclude that there is no basis to disturb the jury’s verdict. Accordingly, the judgment is affirmed.

I.

The appellee, Binder, an employee of Washington Tool & Machine Co. (“Washington”), brought this action for negligence against Jones & Laughlin Steel Corp. (“J & L”), after J & L’s cast-iron roll exploded, injuring Binder. J & L joined Washington and Wean United, Inc., the manufacturer of the roll, but agreed to dismiss them before the end of trial. At the close of the evidence J & L requested several points for charge, including an instruction relating to Binder’s contributory negligence. The trial court refused this instruction and the jury returned a verdict of $420,000 for Binder and $80,000 for his wife. Pursuant to Pa.R.Civ.P., Rule 238, the trial court added $187,500 in delay damages.

Viewed in the light most favorable to Binder as verdict winner, Fannin v. Cratty, 331 Pa.Super. 326, 331, 480 A.2d 1056 (1984), the evidence established that Washington had agreed to replace a shaft which had broken from the center of the roll. To accomplish the replacement, J & L’s purchase order specifically requested Washington to remove the remainder of the original shaft, to bore a hole through the center of the roll, and to “shrink fit” the roll onto the new shaft. The process of “shrink fitting,” which Washington had performed for J & L for about ten years, involves expanding the roll with heat, so that the hole through the center could be widened and the new shaft installed. When the heated metal cools, the roll contracts or “shrinks” to fit the new shaft. Washington customarily applied heat with propane and oxygen fueled torches. Its fitters would constantly move the flame over the roll’s surface to uniformly distribute the heat. J & L’s representatives visited Washington’s plant frequently and knew that Washington employed this method almost exclusively.

After the removal of the original shaft and the boring of the hole, Binder and another employee were assigned to shrink fit the roll. With the help of a crane, Binder stood the roll on a table and began to heat it with the propane and oxygen fueled torches. Shortly after Binder \began the heating process, he was joined by the other employee. After about an hour, they stopped to allow the foreman to measure the hole in the center of the roll. No expansW had yet occurred. Within minutes after they resumed heating, the roll exploded in two, crushing Binder’s leg and causing burns, bruises and lacerations. The injury also caused Binder to miss nearly a year and a half of work, and within two months of his return, he suffered a heart attack which a physician related to the stress induced by his long absence.

The evidence further demonstrated that the roll had a carbon content of 3.41%. This relatively high percentage of carbon is the characteristic distinguishing cast-iron from steel, which typically possesses less than 1% carbon. While the greater carbon makes cast-iron less ductile, or flexible, than the steel it is used to mold, it also makes it brittle when heat or other pressure is applied. Also, the outer surface of the roll was chill casted, which means that it was cooled more rapidly than the inside of the roll. This chill-casting technique makes the surface even harder, but puts it in a state of compression, pushing towards the center of the roll. The inside of the roll cools more slowly and is cast in a state of tension, pulling away from the center of the roll. The plaintiff’s expert testified that the combination of these conflicting stresses and the high carbon content made the cast-iron likely to split when heated.

Along with its purchase order, J & L provided Washington with a copy of the purchase order to the manufacturer, which included a notation that the roll was to be made of cast-iron. An employee of Washington’s main office converted the former purchase order to an in-house shop order. The shop order was then transmitted, along with diagrams which showed that the roll was chill-casted, to the manufacturing office, which scheduled and otherwise coordinated the necessary work. The documents were then sent to a foreman on the floor of Washington’s plant, who instructed the workers. The papers contained no information that the roll possessed a high percentage of carbon, nor did they specifically warn that it had a dangerous propensity to crack when heated.

II.

Section 388 of the Restatement of Torts, 2nd imposes liability for damages caused by suppliers of chattel who fail to use reasonable care to inform likely users of the chattel’s dangerous conditions. J & L first argues that it had no duty to inform Binder, because there was insufficient proof that the roll was dangerous. Viewed in the light most favorable to Binder as verdict winner, Fannin v. Cratty, supra, the evidence established that the roll weighed over two tons .and, because it possessed a high carbon content and was chill-casted, was likely to split when heated. Nevertheless, J & L contends that because these features were common design characteristics, the roll was not defective and could not be found to be dangerous. However, even a perfectly made article may be unsafe for a use different from the one for which it was designed. See Restatement of Torts, 2nd § 388, comment g; Cf. Berkebile v. Brantly Helicopter Corp., 225 Pa.Super. 349, 354, 311 A.2d 140 (1973), aff'd 462 Pa. 83, 337 A.2d 893 (1975). The mere fact that chattel was designed to possess the characteristics which make it dangerous vitiates neither the danger nor the corresponding duty to warn an unsuspecting user. On this record, the features which may have benefit-ted the steel molder clearly endangered the shrink fitter. The evidence amply supported the jury’s conclusion.

J & L also challenges the sufficiency of the evidence regarding whether it “had reason to know” of the roll’s dangerous propensity to split when heated. Without such evidence, of course, there is no duty to warn of the danger. We note at the outset that J & L was in the business of manufacturing metal products. The evidence also established that J & L supplied the roll to Washington to “shrink fit” it onto a new shaft. Thus, J & L obviously knew that the roll was to be expanded with heat. It also knew the specific features which made the roll dangerous. On these facts alone, a jury could reasonably infer that J & L “had reason to know” that the roll would be dangerous for its intended use. J & L counters that it had no reason to know of the danger because it never actually knew of a situation where application of heat caused a roll to split. However, our courts have never required negligence plaintiffs to prove a defendant’s actual knowledge of the existence of a dangerous condition. Nor does the Restatement provision which governs this determination of liability impose such a requirement. See note 5, supra. An “actual knowledge” standard would fundamentally alter the cause of action for negligence, and would require an injured plaintiff to show an absence of care approaching recklessness. We reject any suggestion to impose such a standard.

III.

Assuming, as it must, the existence of a duty to inform, J & L next contends that it met its duty by disclosing in the accompanying documentation that the roll was cast-iron and chill casted. Reduced to simplest terms, a judicial determination of the adequacy of information disclosure in actions brought under § 388 requires no more than an analysis of whether the alleged tortfeasor breached the standard of care required of the “reasonable man” in a similar situation. See Manning v. Andy, 454 Pa. 237, 243, 310 A.2d 75 (1973) (Manderino, J. dissenting); Restatement of Torts, 2nd, § 283 (1965). In Thomas v. Arvon Products Co., 424 Pa. 365, 369, 227 A.2d 897 (1967), a case decided under § 388, our Supreme Court focused our inquiry even further: “(t)he care to be exercised in a particular case must always be proportionate to the seriousness of the consequences which are reasonably to be anticipated as a result of the conduct in question” (citations omitted).

When an employer acts as the nexus between the supplier and the actual user of the dangerous chattel, the law clearly does not impose a standard of care which would require the supplier to directly inform the user of the dangerous condition. As J & L correctly suggests, the exigencies of commerce do not reasonably permit the supplier to discover who to inform, since it is the employer who ordinarily decides who will “use” the chattel.

But just as the law does not require the supplier to ignore the employer, it does not allow him to escape the duty to disclose by cavalierly relying on the employer to somehow pass the information along to the actual user. Comment n to § 388 provides:

Even though the supplier has no practicable opportunity to give this information directly and in person to those who are to use the chattel or share in its use, it is not unreasonable to require him to make good any harm which is caused by his using so unreliable a method of giving the information which is obviously necessary to make the chattel safe for those who use it and those in the vicinity of its use.

A supplier must thus be concerned not only with what information it conveys, but how it conveys it. The information given must be complete and accurate to protect against foreseeable risks of harm, and must be presented to make it reasonably likely to notify the actual user of these risks. See Dougherty v. Hooker Chemical Corp., 540 F.2d 174, 179 (3rd Cir.1976).

On this record, the risk of serious injury was clearly foreseeable. Appellant knew that a high carbon, chill-cast-ed, heavy metal object would be dangerous to one who stood near it, applying heat. Nevertheless, the information which J & L submitted to Washington can at best be described as random. It contained nothing even vaguely resembling a warning and no listing of any of the chemical components of the roll it was meant to describe. Clearly, a jury could reasonably find that the information, as provided to Washington, lacked the specificity and conspicuousness necessary to attract the attention of Binder or one of the several agents responsible for instructing him. Accordingly, the evidence was sufficient to prove the inadequacy of the disclosure.

IV.

A. Next, J & L challenges the trial court’s failure to instruct the jury regarding plaintiff’s contributory or comparative negligence. This instruction is required when there is some evidence, however slight, in the record to support a finding of contributory negligence. See McCullough v. Monroeville Home Association, 270 Pa.Super. 428, 431, 441 A.2d 794 (1979). Conversely, where no evidence would support a finding of plaintiffs negligence, a trial judge must not give the instruction to the jury. See Hanlon v. Sorenson, 289 Pa.Super. 268, 275, 433 A.2d 60 (1981). To determine whether a plaintiff, injured in the course of employment, is contributorily negligent so as to bar or reduce recovery, a court considers the employee’s working conditions and the circumstances incident to his employment, including his obligation to do his job, Seewagen v. Vanderkluet, 338 Pa.Super. 534, 543, 488 A.2d 21 (1985).

Measured by these standards, there was no error in the trial court’s failure to charge on plaintiff’s negligence. Relying on the testimony of its expert witness, J & L contends that Binder was negligent: 1) by standing the roll on its end, thus preventing expansion by allowing heat to escape through the hole in the center, 2) by continuing to heat the roll after it became evident that it was not expanding, and 3) by heating the roll with torches rather than a furnace. Even if the jury would have believed these assertions, it could not have found Binder to be negligent. It is a well-settled principle in this Commonwealth that a plaintiff is not negligent for failing to anticipate the negligence of others, Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 582-83, 187 A.2d 646 (1963); Jemison v. Pfeifer, 397 Pa. 81, 91-92, 152 A.2d 697 (1959). As the Jemison court explained, “[n]o one can complain of want of care in another where care is only rendered necessary by his own wrongful act,” id. (citation omitted). Here, as a result of J & L’s prior negligent failure to adequately warn, Binder was unaware of facts which would have alerted him to the dangers of applying heat to cast-iron which was chill casted. Had he been aware of these facts, the actions he took during the “shrink fitting” process may have formed the basis for a finding of contributory negligence. Without the warning, however, Binder only failed to predict the negligence of J & L, a standard of care which our courts have consistently refused to impose on plaintiffs. See Jemison, supra.

Our determination is supported by the recent decision in Speer v. Berry, 349 Pa.Super. 365, 371, 503 A.2d 409 (1985), where we upheld the refusal to give a contributory negligence charge in an action by a tenant against his landlord for negligent maintenance of a porch. There, the court wrote:

... the evidence did not show that the husband-plaintiff was testing a known danger ... On the contrary, the evidence showed that the defect was latent and neither obvious nor known to him. Therefore, it was not error to fail to charge the jury on contributory negligence. See: Brancato v. Kroger Co. Inc., 312 Pa.Super. 448, 455, 458 A.2d 1377, 1381 (1983).

Likewise, on this record, the danger in the roll clearly was latent and not known to the plaintiff. Accordingly, the failure to charge was not error.

B. Appellant also contends that the court erred by not instructing the jury that just because an accident occurred, negligence does not follow. In Robert v. Chodoff, 259 Pa.Super. 332, 356-57, 393 A.2d 853 (1978), a medical malpractice action, this court rejected a claim that it was error not to instruct the jury that an unexpected, unfortunate or even disastrous result does not alone prove negligence. We explained:

While we agree with this proposition, see Donaldson v. Maffuci, 397 Pa. 548, 156 A.2d 835 (1959); Ragan v. Steen, [229 Pa.Super. 515, 522, 331 A.2d 724 (1974) ], we do not believe that the omission of this charge in the instant case amounts to reversible error. The lower court’s charge repeatedly emphasized that appellee had the burden of proving appellant’s specific acts of negligence caused appellee’s brain damage; implicit in these instructions is the converse proposition that a finding of negligence cannot be grounded upon the ultimate result of brain damage alone.

The court in this case did instruct the jury with regard to the plaintiff’s burden of proof, causation and the duty of due care. Like the jury in Robert, the jury here was surely able to infer that negligence was absent if it found that one of these elements did not exist. Accordingly, the failure to give this requested charge was not error.

C. Nor are we persuaded that the trial court’s exclusion of expert testimony by J & L’s machine shop foreman forms a basis for appellate relief. The foreman was allowed to testify about J & L’s own shrink-fitting technique, but was not allowed to explain the reason why it chose this technique over the one used by Washington. If this evidence was offered to prove Washington’s negligence, then it is neither preserved for review nor relevant. See note 1 supra. But even if it was offered to show that J & L lacked knowledge of the roll’s danger, a local rule required the proponent of expert testimony to file a report stating the expert’s findings and conclusions. Since no report was filed here, the trial court's exclusion remedy was not an abuse of discretion.

V.

Finally, J & L alleges that the plaintiff has not proved his claim for loss of future wages. It is axiomatic that an appellate court will not substitute its judgment for a jury verdict which is reasonably supported by the evidence, Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 578, 475 A.2d 1314 (1984). Viewed in the light most favorable to Binder as verdict winner, Fannin v. Cratty, supra, the evidence established that plaintiff suffered a heart attack two months after he returned to work following his injury. A cardiologist testified that the stress of returning to work and the strain of performing his job without the full use of both legs aggravated a pre-existing heart condition, thus accelerating the occurrence of plaintiff’s heart attack. While J & L’s experts disputed the existence of a relationship between Binder’s return to work and his heart attack, the verdict indicates that the jury accepted plaintiff’s theory. This determination is clearly reasonable, Riddle Memorial Hospital v. Dohan, supra. Accordingly, appellant has presented no basis to disturb this aspect of the jury’s verdict.

J & L also alleges that the trial court erred by excluding the expert opinion of a physician that there was no relationship between Binder’s work activities and his heart attack. J & L alleges that it was prejudiced by the exclusion because this opinion would have corroborated a similar one from another doctor. The trial court excluded the corroborative opinion because the hypothetical question on which it was based included no reference to Binder’s work activities. Appellant claims that this ruling was error, since the expert testified that his opinion was based on Binder’s statement detailing his work on the day he suffered the heart attack. In any event, exclusion of this testimony was harmless. See Stern v. Vic Snyder, Inc., 325 Pa.Super. 423, 433-34, 473 A.2d 139 (1984). The jury was allowed to hear the physician’s testimony that if the heart attack was related to Binder’s work activities, it would have occurred within an hour of the completion of the work. This testimony corroborated the other opinion evidence in much the same manner as expression of the ultimate conclusion would have. Moreover, the physician also testified that several aspects of Binder’s health background actually caused the heart attack. Accordingly, the exclusion of this testimony provides no basis to disturb the jury verdict. See Robinson v. City of Philadelphia, 329 Pa.Super. 139, 146, 478 A.2d 1 (1984).

Finally, appellant “sincerely doubt[s] that a man with a heart condition will live as long as a man with a healthy heart.” Accordingly, it contends that the court erred by failing to instruct the jury to consider the life expectancy of men of plaintiff’s age in light of his past heart condition. Appellant neither objected to the admission of plaintiff’s life expectancy evidence nor offered evidence which would support the charge it requested. Cf., Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 139, 410 A.2d 1282 (1979) (evidence of average life expectancy in wrongful death action which did not assume fact of decedent’s chronic alcoholism was irrelevant to prove decedent’s life expectancy). Moreover, appellant did not request the court to charge the jury regarding the alleged limited weight of life expectancy evidence. Accordingly, the question of whether the trial court must instruct the jury to consider life expectancy evidence only in light of plaintiff’s particular circumstances has not been preserved for our review.

Judgment affirmed.

      . The dismissal of Washington extended only to its alleged negligence. There was an indemnity agreement between Washington and J & L, consideration of which was severed from the negligence action by the trial court. Accordingly, no issue relating to indemnification is before us and any issue relating to the negligence of Washington has not been preserved for review. See M.N.C. Corp. v. Mt. Lebanon Medical Center, 334 Pa.Super. 359, 364, 483 A.2d 490 (1984).
      Aside from appellant’s failure to preserve any issue regarding Washington’s negligence, it is clearly the law of this Commonwealth that the negligence of an employer neither bars nor diminishes an employee’s recovery against a third person. See Heckendorn v. Consolidated

        Rail Corp., 502 Pa. 101, 465 A.2d 609 (1983); Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 354-55, 414 A.2d 100 (1980); Lambert v. Pittsburgh Bridge & Iron Works, 463 Pa. 237, 344 A.2d 810 (1975). Cf. Van Buskirk v. Carey Canadian Mines Ltd., 760 F.2d 481, 497 (3rd Cir.1985) (fact that employer also failed to warn should not absolve supplier of duty to warn). Appellant is thus not entitled to relief regardless of whether we approach the issue as one involving Washington’s alleged superior duty to warn or as one involving its failure to adequately warn as an intervening cause of Binder's injury. Accordingly, there was no error in the trial court’s failure to submit the question of Washington’s negligence to the jury.

      . Rule 238 has since been held to violate principles of procedural due process. See Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986). Since appellant does not challenge the award of delay damages, it is not entitled to relief under Craig, 512 Pa. at 66, 515 A.2d at 1353.

      . The roll was used to manufacture J & L’s steel products. It weighed over 5,000 pounds, was 23 inches long and 30 inches in diameter.

      . The diagrams were admitted into evidence but were not made a part of the record on appeal. We are thus unable to discern the extent to which this information was made explicit in the diagram.

      . § 388. Chattel Known to be Dangerous for Intended Use
      One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
      (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
      (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
      (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

      . The related argument that the trial court erred by failing to charge the jury on the issue of whether J & L knew or had reason to know of the dangerousness of the roll is plainly without merit. Our review indicates that such a charge was given. The relevant portion of the record reads:
      ... One who supplies directly or through a third person a chattel, which in this case is the roll in question, for another to use is subjected to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use for the physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied if the supplier, (a), knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, ...
      Accordingly, appellant has established no right to relief on this ground. See Pratt v. Stein, 298 Pa.Super. 92, 142, 444 A.2d 674 (1982).

      . See Allegheny County Court Rules, Rule 212 (VI)(A)(d).


author: TAMILIA, Judge:

text:
    520 A.2d 870
    COMMONWEALTH of Pennsylvania v. John McANDREWS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1986.
    Filed Jan. 28, 1987.

      John J. Duffy, Philadelphia, for appellant.
    Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, WICKERSHAM, WIEAND, McEWEN, DEL SOLE, TAMILIA, KELLY and JOHNSON, JJ.
   TAMILIA, Judge:

This appeal is from the dismissal of the defendant’s petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. § 9541, et seq. The sole issue presented is whether the petition for relief under the Post Conviction Hearing Act may be denied summarily because of delay in presenting that petition.

On November 1, 1977, the defendant was arrested and charged with the murder of his twenty-three year old girlfriend. While admitting to shooting the girl, he claimed the shooting was accidental and that he thought the gun was unloaded. It was established at trial that the victim had been strangled and slapped in the mouth just before her death which resulted from a contact gunshot wound to her head. It was further established that the victim was afraid of the defendant because of past physical abuse and that she planned to terminate their relationship. The defendant had displayed the gun to friends and loaded it in their presence on the afternoon of the killing.

The trial, before the Honorable Juanita Kidd Stout, was by jury and the defendant was convicted on April 11, 1978 of first degree murder and possession of an instrument of crime. He received a sentence of life imprisonment with a concurrent two and one-half (2V2) to five (5) years term on the weapons charge.

This judgment of sentence was appealed to the Supreme Court of Pennsylvania which affirmed the judgment in Commonwealth v. McAndrews, 494 Pa. 157, 430 A.2d 1165 (1981).

On December 14, 1983, nearly two and one-half years after the Supreme Court decision, the defendant filed his petition alleging ineffectiveness of trial counsel. The only reason he gave for the two and one-half year delay was his attempt to raise funds to retain private counsel. The court below dismissed his petition without hearing or reviewing the record, determining that the delay was unreasonable and the petition, therefore, was frivolous. A subsequent motion for reconsideration was also denied by the trial court.

Initially, we would hold that delay in and of itself is not a basis for denying a P.C.H.A. petition. It is a relevant factor, among others, to be considered by the P.C.H.A. Court in determining whether or not the petition is frivolous. Only upon a review of the record and upon a determination that the petition was frivolous on its face, that it appeared that the issues raised have been decided on appeal, or are nonissues, should there be a dismissal without a hearing. The long delay is a relevant consideration in this review, and where there is no justification for the delay, the court may take a more stringent approach to the allegations raised in the petition, especially when the delay has resulted in problems of proof for the Commonwealth. Particularly, when the opportunity to have raised the issues earlier would have provided a more meaningful review with a greater capacity to reconstruct the record through testimony and other evidence, delay will play a much heavier role than otherwise. Such was the case in Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), Commonwealth v. McCloud, 312 Pa.Super. 209, 458 A.2d 219 (1983), and Commonwealth v. Kale, 312 Pa.Super. 69, 458 A.2d 239 (1983), all of which involved withdrawals of a guilty plea. In Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981), the Supreme Court details the parameters and the guidelines that apply in the dismissal when an unusual delay occurred in the presentation of the P.C.H.A. petition. In that case, the delay was a period of twenty-seven (27) years and the Supreme Court held, “Thus, a lengthy, unexplained delay in raising an issue will buttress the presumption of knowing and understanding waiver; conversely the immediate attempt to gain review of alleged error at the earliest possible time would have the opposite effect.” Id., 495 Pa. at 36, 432 A.2d at 187.

The crux of the issue under consideration turns upon that section of 42 Pa.C.S.A. § 9544(b) which holds:

(b) Issues waived
For the purpose of this subchapter, an issue is waived if
(1) the petitioner knowingly and understanding^ failed to raise it and it could have been raised before the trial, at trial, on appeal, in a habeas corpus proceeding or any other proceeding naturally conducted or in a prior proceeding actually initiated under this subchapter
(2) the petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) Presumption
There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.

From these subsections is gleaned the guiding principle that when an issue is not asserted in a timely fashion, it is presumed that the party failed to raise the issue because he knowingly and understanding^ did not believe it to have merit or, when given the opportunity to present the issue, he knowingly and understanding^ waived the presentation. Thus from Alexander we are instructed that the more proximate the petition is filed to the time when the issue should have been raised, the greater vitality it will have in terms of review. The longer the delay between the time it could have been presented and the time it was brought to the attention of the court, the less vitality that issue will have and the greater the burden placed on the P.C.H.A. petitioner to overcome the presumption of waiver.

In this case, the appellant had appealed the judgment of sentence and it was affirmed by the Supreme Court. McAndrews, supra. It was two and one-half years following the Supreme Court decision that the defendant filed his petition (his first) alleging ineffectiveness of trial counsel. Pursuant to the numerous findings of decisions in this Court and the Supreme Court, matters not raised on appeal are considered to be waived when the case is finally litigated. In the usual sense of the word, an affirmance of the lower court by the Supreme Court is a final litigation of the case. 42 Pa.C.S.A. § 9544(a)(3). As we have already noted, even when the issues were not raised in such an appeal, they are considered to be waived if the petitioner knowingly and understandingly failed to raise them at the appropriate time.

Since the listing of the matters upon which relief may be based, detailed in 42 Pa.C.S.A. § 9543, Eligibility for relief, consists of generally clear issues of due process of law easily ascertainable during the course of pre-trial and post-trial proceedings and there is a presumption that counsel is diligent and effective in representing his client, the burden must be upon the petitioner to show that some element of due process has been violated in the proceedings. Likewise, since trial strategy will permit a knowing and understanding waiver of certain rights and procedures, it is also incumbent upon the petitioner to show that he did not waive a right and to show that despite a nonwaiver, he was prejudiced by the action or nonaction of counsel. Commonwealth v. McBee, 513 Pa__, 520 A.2d 10 (1986); Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986); Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Upon the consideration of these factors and a determination, upon hearing, that those due process rights were not violated or were waived, or that the issues have been timely raised and litigated on appeal, there generally would be no further relief available to the petitioner. Taking into consideration, however, that on occasion counsel had not properly informed the petitioner of his procedural and substantive due process rights, and issues that should have been raised were not properly raised at the appropriate time, and that this prejudice was not discovered in time for appeal, the P.C.H.A. and the courts have treated this as an extraordinary circumstance and have permitted the petitioner to prevail when he can effectively establish ineffective assistance of counsel in failing to preserve those rights.

This presents the nexus of this case in that where ineffective assistance of counsel has been alleged, despite delay in presenting the P.C.H.A. petition, the delay will result in a presumption that the rights have been waived, but it is not possible to determine what weight should be given to the delay factor unless there is at least a review of the record by the trial court and counsel to ascertain whether the ineffectiveness allegations are warranted or not, and whether the weight to be given them is sufficient to overcome the presumption of waiver for failure to file the petition in an expeditious manner.

A review of the cases, which are numerous, in respect to such delay establishes clearly that delay was considered to be a relevant factor in denying the petition but in no case was the petition denied without a review of the record by the trial court to determine the bearing of the delay in relation to the state of the record and the capacity of that record to refute the allegations of the petition. Unquestionably, the reasons given for the delay are an important consideration in this review. In Commonwealth v. Johnson, 339 Pa.Super. 296, 488 A.2d 1132 (1985), the six-year delay between a robbery conviction ánd petition for post-conviction relief did not result in waiver in the view of allegations of ineffective assistance. In Commonwealth v. Thompson, 343 Pa.Super. 468, 495 A.2d 560 (1985), no explanation was given for the delay and on appeal, this Court, while not condoning delay and pointing out there was a delay of five and one-half years, went forward and decided that the petition had no merit on the record. In Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983) , this Court held that a lapse of time is a factor in assessing the merits of the petition. The court found in a similar fashion in Commonwealth v. Hudson, 336 Pa.Super. 174, 485 A.2d 487 (1984), Commonwealth v. White, 333 Pa.Super. 1, 481 A.2d 1190 (1984) and Commonwealth v. Morrow, 326 Pa.Super. 443, 474 A.2d 322 (1984). In Commonwealth v. Broadwater, 330 Pa.Super. 234, 479 A.2d 526 (1984) , this Court considered a seven and one-half year delay in presenting a P.C.H.A. petition alleging ineffectiveness of counsel and recognized that the Supreme Court had held in Commonwealth v. Shaffer, supra, that an unexplained delay in presenting the P.C.H.A. petition could be a basis for barring consideration of the claim on the merits. Judge Rowley, however, based on the fact the Shaffer Opinion did not command a majority of the Court, went forward and determined the issues of Broadwater on the merits. Thus from the decisions of the Supreme Court and of this Court, it is clear that delay alone, even if unexplained, cannot be a basis for barring a review of the record to determine whether or not allegations of ineffectiveness have been established to a sufficient degree to overcome the presumption of waiver. We do not hold that the doctrine of waiver could not be applied on a presumptive basis as a bar to such a claim because of unwarranted and unexplained delay, but we believe that in light of Alexander, supra, such a pronouncement must be made by the Supreme Court.

We, therefore, vacate the Order of the court below and remand the case to that court for the purpose of reviewing the merits of the P.C.H.A. petition, giving due weight to the length of delay in filing that petition. Following such a review, the lower court, if it finds the allegations to be meritless, may dismiss the petition, or if it believes necessary, may hold an evidentiary hearing, following which it may dismiss the petition or grant a new trial. Appellant, of course, retains the right to appeal from an adverse ruling.

Order vacated and case remanded for proceedings consistent with this Opinion. Jurisdiction Relinquished.


author: ROWLEY, Judge:

text:
    520 A.2d 874
    Vera LEWIS, in her own right and as a parent and natural guardian of Richard Lewis, a minor, Appellant, v. CITY OF PHILADELPHIA, Charles Brown, Marvin Bunton and Ronald Core.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1986.
    Filed Jan. 28, 1987.

      Bruce W. Jennings, Philadelphia, for appellant.
    Before CIRILLO, President Judge and ROWLEY and BECK, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order granting appellees’ preliminary objections and dismissing the personal injury complaint filed on behalf of Richard Lewis, a minor. On June 24, 1981, Richard slipped on a sidewalk adjacent to a construction area and fell into a wall which was under construction. Suit was filed against the owner of the building under construction, and on February 7, 1986, suit was filed against the City of Philadelphia. The City filed preliminary objections on the ground that the two year statute of limitations, 42 Pa.C.S. § 5524, barred the minor’s claim. The trial court granted the preliminary objections and dismissed the complaint.

On appeal, appellant argues that 42 Pa.C.S. § 5533(b), which became effective on June 29, 1984 and which tolls the statute of limitations during a person’s minority, should apply. Based on this Court’s decisions in Clark v. Jeter, 358 Pa.Super. 550, 518 A.2d 276 (1986) and Maycock v. Gravely Corporation, 352 Pa.Super. 421, 508 A.2d 330 (1986), we affirm.

In Maycock, the plaintiff was born in 1963 and was injured by a lawn mower in 1967. Two days before his twentieth birthday, on September 15, 1983, the plaintiff sued the manufacturer of the lawn mower by filing a writ of summons. The complaint was filed on June 11, 1984. The defendants filed a motion for judgment on the pleadings which was granted because the plaintiff’s cause of action had expired in 1969. On appeal, the appellant argued that 42 Pa.C.S. § 5533 should be applied retroactively to existing proceedings and pending claims because it is procedural and does not affect the substantive rights and obligations of the parties. Noting that 42 Pa.C.S. § 5533 is silent with regard to its retroactive application, and noting that where a right to sue has expired under the applicable statute of limitations prior to the effective date of a new and longer statute of limitations, the new statute of limitations cannot revive the expired cause of actions, the Court held:

that a minor injured prior to the effective date of 42 Pa.C.S.A. § 5533(b), who attained majority before the effective date, and whose claims are time-barred by applicable statutes of limitations prior to the effective date of § 5533(b) cannot rely on this section to revive a barred claim.

Maycock v. Gravely, Id., 352 Pa.Superior Ct. at 428, 508 A.2d at 334.

Following the rationale in Maycock, the Court concluded in Clark that a minor’s paternity claim in a civil support action which had expired under 42 Pa.C.S. § 6704 could not be revived by the new 18 year statute of limitations, 23 Pa.C.S. § 4343(b). In Clark the putative father voluntarily paid support until June 1981, when the child was 11 years old. Two years and two months later, in August, 1983, while the child was still a minor, a complaint for support raising the issue of paternity was filed. Under 42 Pa.C.S. § 6704(e), the statute of limitations for support/paternity was six years from the birth of the child or two years following the last voluntary payment of support. Therefore, because the complaint for support was not filed until two years and two months after the putative father’s last voluntary support payment when the child was 11 years old, 42 Pa.C.S. § 6704(e) barred the action. Only after the time-barred complaint was filed did the 18 year statute of limitations become effective. Therefore, just as in May-cock, the plaintiff sought to apply a new, lengthier statute of limitations to a time-barred action which was pending. Following the rationale of Maycock, and noting that no statute is to be construed to be retroactive in the absence of the clear and manifest intent of the legislature, 1 Pa.C.S. § 1926, the court denied the claim of retroactivity in Clark.

The instant case is distinguishable from Maycock only on the ground that the minor plaintiff in the present case was still a minor when the action was commenced, whereas in Maycock, the injured minor had reached his majority almost two years before he commenced the action. This distinction, however, is irrelevant. The basis of the holdings in Maycock and Clark is that the statute is silent as to retroactivity and that expired causes of action cannot be revived. In Clark, Maycock, and the instant case, the causes of action had expired before the new statutes of limitations became effective, and the statutes are silent as to retroactivity. Therefore, we find that the age of the plaintiff at the time the action commenced is immaterial to the retroactivity of the statute of limitations which became effective after the applicable statute of limitations expired. We hold that a minor injured prior to the effective date of 42 Pa.C.S. § 5533(b) and whose claims are time-barred by the applicable statute of limitations prior to the effective date of § 5533(b) cannot rely on § 5533(b) to revive the barred claim.

Order affirmed.

      . Appellant has not objected to the City’s use of preliminary objections, rather than new matter, for raising the statute of limitations defense in violation of Pa.R.C.P. 1030. See: Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986). However, this issue was raised neither in the trial court nor on appeal and therefore has been waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

      . None of the three reasons presented by appellant to support her argument has merit. First, contrary to her assertion that the statement in the legislative history, that without the tolling of the statute of limitations during minority, many minor victims would lose their right to recover damages, shows an intent to apply the statute retroactively, the statement in the legislative history is silent with regard to retroactivity and simply shows the reason for changing the statute.
      Second, appellant relies on Creighan v. Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957) and Gehris v. Commonwealth, Dept. of Transportation, 471 Pa. 210, 369 A.2d 1271 (1977) to argue that she is not seeking retroactive application. This argument is misplaced because Creighan and Gehris involve application of new statutory causes of action and do not concern a new statute of limitations applied to a previously existing cause of action.
      Finally, appellant’s reliance on Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982) is also misplaced. Williams and Hatfield v. Hazelbaker, 306 Pa.Super. 555, 452 A.2d 863 (1982) are inapplicable because they do not involve the issue of the revival of an expired cause of action. Rather, they held that a civil claim for paternity was unaffected by extinguishment of the criminal cause of action for paternity because the civil cause of action had not been extinguished.

      . See: In re Condemnation of Real Estate by Carmichaels, 88 Pa. Cmwlth. 541, 490 A.2d 30 (1985); Upper Montgomery Joint Authority v. Yerk, 1 Pa.Cmwlth, 269, 274 A.2d 212 (1971); Overmiller v. D.E. Horn and Co., 191 Pa.Super. 562, 159 A.2d 245 (1960); and Seneca v. Yale and Towne Manufacturing Co., 142 Pa.Super. 470, 16 A.2d 754 (1940).


author: CIRILLO, President Judge:

text:
    520 A.2d 876
    Rebecca DION, Executrix of the Estate of Lewis Dion, Deceased, Appellant, v. The GRADUATE HOSPITAL OF the UNIVERSITY OF PENNSYLVANIA, Abbott Laboratories, Dr. William Blakemore, Samuel Burke, et al.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1986.
    Filed Jan. 30, 1987.

      Fred Lowenschuss, Philadelphia, for appellant.
    Albert Piccerilli and Robert Mulhern, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and MONTEMURO and JOHNSON, JJ.
   CIRILLO, President Judge:

Rebecca Dion, Executrix of the Estate of Lewis Dion, appeals from a final judgment of the Court of Common Pleas of Philadelphia County.

In 1972, appellant, Rebecca Dion, instituted a wrongful death and survival action. She alleged medical malpractice and product liability claims arising from the administration of “Penthrane” anesthesia to her husband during surgery. Appellant’s husband, Lewis Dion, died as a result of acute peritonitis caused by renal failure due to Penthrane toxicity.

Initially, more than fifty defendants were named in this suit. At the time of trial, as the result of settlements and other dispositions, four defendants remained: Abbott Laboratories (Abbott), the manufacturer of Penthrane; Dr. Blakemore, the surgeon; Dr. Stone, the anesthesiologist, and Mr. Burke, a nurse anesthetist. At the close of appellant’s case, the court granted a non-suit in favor of Abbott Laboratories. The jury returned a verdict in favor of Dr. Blakemore and Mr. Burke and against Dr. Stone. Subsequently, appellant’s motion for a new trial was denied.

On appeal, appellant alleges the following: (1) the trial court erred in granting a non-suit in favor of Abbott Laboratories; (2) the trial court erred in excluding appellant’s proposed expert witness testimony against Abbott Laboratories; and (3) the preparation and trial of appellant’s case were prejudiced by the trial court’s erroneous rulings regarding pretrial discovery and its refusal to impose sanctions against Abbott Laboratories for willful destruction of documents.

We note first that appellee Dr. Blakemore filed a motion to dismiss the appeal as to him because no claims were pursued against him on this appeal. The motion was denied without prejudice to raise the issue in briefs and at argument.

Pennsylvania Rule of Appellate Procedure 2116(a) provides in part:

The statement of the questions involved must state the question or questions in the briefest and most general terms ... [and] ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby.

Appellant’s brief raised three issues regarding her claim against Abbott. No mention of appellee Dr. Blakemore is made. We find that appellant has not carried forward in her brief any claim against Dr. Blakemore, and therefore any claims against him are waived. See Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984) (ordinarily when Superior Court decides issues on appeal, it restricts itself to the statement of questions involved in the appellant’s brief for a definition of the issues to be decided).

I

Appellant first raises the question of whether the trial court properly granted a non-suit in favor of Abbott. Before we address this issue, it is necessary to explain the basis of the trial court’s action.

A.

Appellant’s primary theory of liability was Abbott’s failure to adequately warn of the dangers of Penthrane in its package insert. Mrs. Dion alleged that she introduced evidence of Abbott's own documents showing that the use of Penthrane was contraindicated in a patient such as Lewis Dion, and that Abbott failed to give such a warning. Specifically, appellant alleged that Mr. Dion had a history of elevated B.U.N. (blood urea nitrogen) and creatinine levels, and the package insert failed to adequately warn of the dangers of Penthrane to patients with such a history.

Abbott’s Penthrane warnings in the package insert cautioned as follows:

WARNINGS
INSTANCES OF TUBULAR DYSFUNCTION, ESPECIALLY HIGH OUTPUT RENAL FAILURE, SOMETIMES LEADING TO DEATH, HAVE BEEN REPORTED. (SEE ALSO ADVERSE REACTION.) THE MECHANISM WHEREBY PENTHRANE MAY CAUSE RENAL DYSFUNCTION IS NOT KNOWN. HOWEVER, THERE APPEARS TO BE A RELATIONSHIP TO TOTAL DOSAGE. SPECIAL CARE TO AVOID UNNECESSARILY DEEP ANESTHESIA IS REQUIRED, ESPECIALLY IN AGED OR OBESE PATIENTS, AND IN SURGICAL PROCEDURES OF LONG DURATION, AND DURING ASSISTED OR CONTROLLED VENTILATION. IT SHOULD BE APPRECIATED THAT ABSENCE OF HYPOTENSION CANNOT BE RELIED UPON AS EVIDENCE THAT DOSAGE HAS NOT BEEN EXCESSIVE. OTHER SIGNS SHOULD BE USED AS A GUIDE TO PROPER DOSAGE. (SEE DOSAGE AND ADMINISTRATION.)
ALL PATIENTS WHO RECEIVE PENTHRANE (METHOXYFLURANE) SHOULD BE MONITORED FOR URINARY OUTPUT AND POSSIBLE LABORATORY SIGNS OF RENAL DYSFUNCTION. AS INDICATED, LOSSES OF FLUIDS AND ELECTROLYTES IN URINE OR BY OTHER ROUTES SHOULD BE PROMPTLY REPLACED.
WHEN IMPAIRED RENAL FUNCTION IS PRESENT PREOPERATIVELY THE BENEFITS-TO-RISK RATIO MUST BE CAREFULLY WEIGHED IN ARRIVING AT THE JUDGMENT TO EMPLOY PENTHRANE, AND SERIAL TESTS OF RENAL FUNCTION AND FLUID-ELECTROLYTE STATUS SHOULD BE OBTAINED SO THAT SPECIAL MEASURES TO OFFSET EMERGING DEFICITS CAN BE EFFECTED EARLY IN THEIR COURSE.
CONCURRENT USE OF TETRACYCLINE AND METHOXYFLURANCE HAS BEEN REPORTED TO SERIOUSLY IMPAIR RENAL FUNCTION LEADING TO DEATH....
ADVERSE REACTIONS
Hepatic dysfunction and fatal hepatic necrosis following PENTHRANE, (methoxyflurane) anesthesia have been reported.
Renal PENTHRANE anesthesia. This reaction is characterized by the development early in the postoperative period of a large flow of urine of low, relatively fixed specific gravity, with a volume equivalent to or in excess of the fluid intake. This usually results in a negative fluid balance, pronounced weight loss, and elevation of serum sodium, serum chloride, osmolality, and blood urea nitrogen, and uric acid.
Autopsy revealed oxalate crystals and/or acute tubular necrosis in several patients who died of varying causes after the administration of PENTHRANE.
Some patients exhibit an unexplained pallor during recovery from deeper planes of PENTHRANE anesthesia.
Other adverse reactions that have been reported include: cardiac arrest, malignant hyperpyrexia, prolonged postoperative somnolence, respiratory depression, laryngospasm, bronchospasm, nausea, vomiting, postoperative headache, hypotension, and emergence delirium.

As our Supreme Court stated in Incollingo v. Ewing, 444 Pa. 263, 288, 282 A.2d 206, 220 (1971): “[where] the drug [is] available only upon prescription of a duly licensed physician, the warning required is not to the general public or to the patient, but to the prescribing doctor.” In Incollingo, the question was whether the drug company had properly warned physicians of the dangers of Chloromycetin. The court found this question was properly before the jury. Following the testimony of various experts, the jury concluded that the company had failed to give an adequate warning.

In the instant case, appellant failed to comply with discovery, resulting in sanctions precluding the use of expert testimony against Abbott. In light of appellant’s failure to present expert testimony establishing that Abbott’s warnings were inadequate, the trial court granted Abbott’s motion for a nonsuit. In reaching this conclusion, the trial court considered the fact that Penthrane was a prescription drug used to anesthetize individuals during surgery. The court reasoned that only physicians or others with similar education and experience regarding prescription drugs would be qualified to testify as to the adequacy of the warning.

B.

When a compulsory non-suit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. Kelly v. Doran, 312 Pa.Super. 286, 458 A.2d 962 (1983). To justify the granting of a non-suit, it must appear from the plaintiff’s statement of his case that there is a complete absence of evidence legally sufficient to maintain the action. Stone & Webster Eng. v. Heyl & Patterson, Inc., 261 Pa.Super. 150, 895 A.2d 1359 (1978). Here, the trial court concluded that in the absence of expert testimony, the plaintiff’s evidence was legally insufficient to maintain an action against Abbott based on inadequate warnings.

In order to review the propriety of the court’s conclusion, we must consult the law of products liability. As we stated in Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 57, 485 A.2d 408, 426 (1984):

[T]here are difficulties in thinking of an inadequate warnings case as a products liability case. Products liability cases fall into two categories: Manufacturing defect cases and defective design cases. In a manufacturing defect case, the question whether the product is defective is relatively simple. Since the allegation is that something went awry in the manufacturing process ... the finder of fact need only compare the product that caused the injury with other products that were manufactured according to specifications. In a defective design case, however, the question is whether the product should have been designed more safely. While an inadequate warnings case has been characterized as a kind of defective design case, Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971), the term “defective” does not easily fit when applied to warnings. For in a warnings case it is not alleged that there was anything wrong with the product’s design as such. Rather, a “defect” is supposed to exist because the user was not adequately instructed on how to use the product as the product was designed.

Id. (emphasis in original).

In a products liability case, the plaintiff must prove that (1) the product was defective; (2) the defect caused the injury; and (3) in manufacturing or supplying the product the defendant failed to exercise due care. Dambacher, 336 Pa.Super. at 53, 485 A.2d at 424. See also Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

In Dambacher, the court pointed out that the way to overcome the possible misunderstanding of the term “defective” is to explain to the jury that it is to consider whether the product was safe in the absence of warnings or in light of the warnings that were given. Dambacher, 336 Pa.Super. at 57, 485 A.2d at 426. Here, the trial court ruled that based on appellant’s failure to present expert testimony, a jury would be unable to make a determination of whether or not the product (Penthrane) was defective. That is, absent expert testimony, the jury would be unable to make a determination as to whether or not the warnings were adequate. We agree with the trial court’s reasoning. Based on our review of the warning on Abbott’s package insert, and applying the principles set forth above, we find that in the instant case the trial court properly concluded that expert testimony was necessary. Without expert testimony, there is a complete absence of evidence to show that the warning was inadequate. Thus, a conclusion that the product was defective could not reasonably or properly be reached by the jury. This is simply not the situation where there is no warning or where the inadequacy of the warning is obvious. Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 478 A.2d 34 (1984). Therefore, we find no basis to reverse the trial court’s grant of a non-suit in favor of Abbott.

C.

Although appellant does not specifically raise the issue of whether expert testimony is required to determine the adequacy of a drug manufacturer’s warning when that warning is to the medical community, we feel it is necessary to address this question in order to thoroughly dispose of this appeal. In addition, we note the trial court’s request for clarification.

Expert testimony is admissible when it involves explanations and inferences not within the ordinary training, knowledge and experience of the jury. Pirches v. General Acc. Ins. Co., 354 Pa.Super. 303, 511 A.2d 1349 (1986).

Frequently, the jury, or the court trying a case without a jury, is confronted with issues which require scientific or specialized knowledge or experience in order to be properly understood. Certain questions cannot be determined intelligently merely from the deductions made and inferences drawn from practical experience and common sense. On such issues, the testimony of one possessing special knowledge or skill is required in order to arrive at an intelligent conclusion. 31 Am.Jur.2d Expert and Opinion Evidence § 16 (1967). In these matters, where laymen have no knowledge or training, the court and jury are dependent on the explanations and opinions of experts.

In a logical and fundamental sense, a verdict is worth only as much as the evidence upon which it is based. In a complex case, a jury, in order to reach an intelligent conclusion, is dependent on expert testimony. If the jury is enlightened, it will reach the right verdict. Unaided by the explanations and opinions of those with specialized knowledge or skill, the ultimate conclusion might just as well be based on evidence presented in a language unfamiliar to the jury. Unless the jury is comprised of experts in the field, the verdict is based on mere conjecture. Such a verdict is worthless.

Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. The terms and applications of a warning on such a drug, in order to have meaning, must be explained to the jury. This is a subject “so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman.” McCormick on Evidence 33 (E. Cleary, 3d ed. 1984). Thus, we hold that in a complex products liability action such as this, expert testimony is required to determine whether the drug manufacturer’s warning to the medical community is adequate.

We caution that our holding here is limited to those cases in which the meaning of the warning eludes the comprehension of an ordinary layperson. Where any layperson can understand the insufficiency of a warning, expert testimony is not necessary. It is for the trial court to limit this requirement to the bounds of necessity.

II

Appellant’s second allegation of error concerns the propriety of the trial court's order precluding expert testimony against Abbott.

On July 19, 1978, appellant was served by Abbott with expert interrogatories, and on October 13,1982, the Honorable Bernard Snyder ordered appellant to answer the interrogatories within twenty days. Appellant failed to respond. On December 30, 1982, Abbott moved for sanctions. On April 12, 1983, the trial court, per Judge Snyder, issued the following order: “Defendant’s Motion for Sanctions for Failure of Plaintiff to Answer to Expert Interrogatories is hereby granted. Plaintiff must file Answers to Expert Interrogatories within thirty (30) days or be precluded from presenting expert testimony at the time of trial____” Appellant failed to comply with this order and expert testimony against Abbott was precluded.

However, on October 18, 1984, two weeks prior to trial, Abbott’s counsel received from appellant the report of Seymour Shotz, M.D. On November 5, 1985, the first day of trial, appellant submitted to Abbott the report of Nebojsa Andolovic, M.D. Appellant proposed to have both of these physicians present expert testimony against Abbott with respect to the alleged inadequate warnings. Both of these experts were precluded from testifying. In addition, the trial court precluded defendants Burke, Stone and Blake-more from testifying as experts against Abbott.

The Pennsylvania Rules of Civil Procedure provide for discovery of expert witnesses and their opinions. See Pa.R.Civ.P. 4003.5. Appropriate sanctions may be imposed for failure to comply with discovery requests, including the exclusion of expert testimony after failure to disclose the identity of expert witnesses and the nature of their testimony. Rule 4003.5 provides in pertinent part:

(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

Pa.R.Civ.P. § 4003.5(b). In Kaminski v. Employers Mutual Casualty Co., 338 Pa.Super. 400, 487 A.2d 1340 (1985), this Court held that absent extenuating circumstances, Rule 4003.5(b) is a rule of mandatory preclusion. Id., 338 Pa.Superior Ct. at 407, 487 A.2d at 1344. See also Brophy by Brophy v. Brizuela, 358 Pa.Super. 400, 517 A.2d 1293 (1986). In granting Abbott’s motion for sanctions, the trial court relied on Pa.R.Civ.P. 4019, which provides in relevant part as follows:

Rule 4019. Sanctions
(a)(1) The court may, on motion, make an appropriate order if
(i) a party fails to serve answers ... to written interrogatories.
(viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.
(c) The court, when action under subdivision (a) of this rule, may make
(2) an order ... prohibiting [the disobedient party] from introducing in evidence designated documents, things or testimony ...

The imposition of sanctions is within the discretion of the trial court. Pompa v. Hojnacki, 445 Pa. 42, 281 A.2d 886 (1971); Crance v. Sohanic, 344 Pa.Super. 526, 530, 496 A.2d 1230, 1232 (1985). In practice, however, sanctions for failure to respond to discovery requests are generally not imposed until there has been a refusal to comply with á court order directing compliance. See, e.g., Griffin v. Tedesco, 355 Pa.Super. 475, 513 A.2d 1020 (1986); Simpson v. Allstate Ins. Co., 350 Pa.Super. 239, 504 A.2d 335 (1986); Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985); Brunetti v. Southeastern Pennsylvania Transportation Authority, 329 Pa.Super. 477, 478 A.2d 889 (1984). Here, Mrs. Dion not only failed to answer written interrogatories, but she violated a court order directing her to do so.

In addition, the four factors we outlined in Gill v. McGraw Electric Co., 264 Pa.Super. 368, 382, 399 A.2d 1095, 1102 (1979), can be of some aid in this determination: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court; and (4) bad faith or willfulness in failing to comply with the court’s order. We are satisfied that the trial court properly found these four factors weighed in Abbott’s favor.

We recognize that the preclusion of expert testimony is a drastic sanction, especially where, as here, it would effectively prevent a party from prevailing on her claim. Nonetheless, we cannot ignore appellant’s failure, for over ten years, to comply with discovery. Nor can we ignore a violation of a court order. Given the circumstances, we conclude that the trial court did not abuse its discretion.

Ill

Finally, appellant contends that the trial and preparation of her case were prejudiced by the court’s pretrial discovery rulings and its refusal to impose sanctions against Abbott. Appellant alleges that Abbott failed to comply with discovery and that Abbott deliberately and systematically destroyed records pertaining to other lawsuits against Abbott.

The trial court reviewed Abbott’s answers and supplemental answers to interrogatories and deposition testimony of Abbott’s claims manager, Mr. Nesci. The court concluded that Abbott had sufficiently complied with discovery. In addition, the court found that Abbott’s “document retention program” did not amount to willful destruction of documents. We agree with the trial court, and find the record devoid of evidence supporting appellant’s allegations. We find no abuse of the court’s discretion in its decision not to impose sanctions against Abbott. Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 492 A.2d 1382 (1985).

AFFIRMED.

MONTEMURO, J., joins CIRILLO, President Judge, except for Section I-C.

      . A distinctive form of warning is that which informs the physician of potential risks or side effects which may foreseeably follow the use of the drug. See Twerski, et al., The Use and Abuse of Warnings in Products Liability-Design Defect Litigation Comes of Age, 61 Cornell L.Rev. 495, 520-21 (1976); Keeton, Products Liability-Inadequacy of Information, 48 Texas L.Rev. 398 (1970); Rheingold, Products Liability-The Ethical Drug Manufacturer’s Liability, 18 Rutgers L.Rev. 947 (1964).

      . The source of the confusion to which the Dambacher court refers is the injection of both negligence principles and strict liability principles in products liability cases. See Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978); Berkebile v. Brantly Helicopter Co., 462 Pa. 83, 337 A.2d 893 (1975); Salvador v. Atlantic Boiler Co., 457 Pa. 24, 319 A.2d 903 (1974); Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

      . We agree with appellant that defendants Burke, Stone, and Blake-more are fact witnesses, and not expert witnesses. This does not, however, alter the trial court’s disposition. Their testimony could not be considered expert in nature, and thus appellant would still be without evidence legally sufficient to maintain her action against Abbott.