author: PRESIDING JUSTICE GREEN

text:
    NATIONAL SERVICE LINES, INC. OF NEW JERSEY, Plaintiff-Appellant, v. JIM EDGAR, Secretary of State, Defendant-Appellee.
    Fourth District
    No. 4—84—0465
    Opinion filed January 7, 1985.
    Gary L. Smith, of Douglas G. Brown, P.C., of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns contract motor carrier registration fees assessed by defendant, Jim Edgar, Secretary of State, State of Illinois (Secretary), against plaintiff, National Service Lines, Inc. of New Jersey (National), pursuant to the provisions of section 3 — 402.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 3 — 402.1). By the terms of that section, each interstate carrier operating in Illinois and otherwise subject to those terms is assessed a charge for its fleet of vehicles based on the size of the fleet, the weight of its vehicles, and the number of miles driven in Illinois in relation to the total number of miles driven by the fleet. This method of assessing registration fees is referred to as the prorated method.

Following an audit of National, the Secretary notified National on November 5, 1982, that it owed additional sums for prorated fees for 1979, 1980, and 1981. National requested a hearing on the assessment and requested a refund for prorated fees it had paid for those years and for 1982. Following a hearing before a hearing officer, the Secretary (1) ordered National to pay all additional assessments for 1980 and 1981 but no additional assessments for 1979, and (2) denied National’s request for refund for all years. On administrative review in the circuit court of Sangamon County, that court entered an order on June 14, 1984, reversing the Secretary’s denial of a refund for the year 1979, but otherwise affirming the Secretary’s determination.

National has appealed and the Secretary originally cross-appealed, but has since voluntarily dismissed the cross-appeal. Thus, we must determine on appeal whether the Secretary erred (1) in imposing additional assessments for the years 1980 and 1981, and (2) denying National’s request for refunds for the years 1980 through 1982. We affirm the decision of the circuit court upholding the decision of the Secretary on these issues.

The dispute in this case is based upon the existence of a reciprocity agreement entered into on February 2, 1971, between the States of Dlinois and New Jersey pursuant to the terms of section 3— 402(B)(3) of the Dlinois Vehicle Code (Ill. Rev. Stat. 1969, ch. 951/2, par. 3 — 402(B)(3)). By the terms of the agreement, operators of fleets based in and licensed by one of the States would have to pay only minimal fees in order to operate in the other State. National had applied to the then Secretary in 1979 seeking to be registered under the 1971 reciprocity agreement, but was not permitted to do so. The evidence showed that National was qualified at that time for that type of registration. National did not subsequently apply for registration under the reciprocity agreement until late 1982, when the Secretary granted registration under the agreement for subsequent years.

National does not dispute the accuracy of the Secretary’s calculations as to the amount of fees which National should have paid under the prorated system for the years 1980 through 1982. Rather, National contends that because of the erroneous ruling that it was not entitled in 1979 to register under the reciprocity agreement, the Secretary is estopped to assert that National must pay prorated fees for the subsequent years in question. National maintains that it would have applied under the reciprocity agreement in those years had it not been misled by the wrongful 1979 decision of the then Secretary. The Secretary responds that (1) National was not eligible for registration under the agreement in 1980 through 1982, (2) the doctrine of estoppel is not applicable, and (3) in any event, National’s request for a refund was not timely.

Donald Helm, president of National, testified that in 1980, 1981, and 1982, National leased approximately 15 vehicles which were not licensed in New Jersey. Although, according to Helm’s testimony, these vehicles accounted for less than one-tenth of one percent of the total revenue earned by National’s fleet in those years, the use of these vehicles prevented National from being eligible for licensing under the reciprocity agreement during those years. Unless the Secretary is estopped to raise the issue of National’s failure to comply with the requirements of the agreement, the use of these vehicles, although only a minimal deviation, bars National from (1) denying liability for the fees that should have been assessed for those years under the prorated method, and (2) obtaining refund for those fees paid under that method.

Only in extraordinary circumstances may estoppel be invoked against the State in its collection of the public revenue. (People ex rel. Scott v. Chicago Thoroughbred Enterprises, Inc. (1973), 56 Ill. 2d 210, 306 N.E.2d 7.) Estoppel cannot be invoked merely because the State sends out a notice of tax liability, accepts payment pursuant to the amount stated in the notice and then seeks to reexamine the taxpayer’s records to determine if additional liability exists. (Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 280 N.E.2d 437.) In Mr. Car Wash, Inc. v. Department of Revenue (1975), 27 Ill. App. 3d 931, 327 N.E.2d 88, a previous State audit of a taxpayer had permitted the taxpayer to take a certain deduction in determining the amount of sales subject to retailers’ occupation taxes. The taxpayer had relied on this ruling in taking deductions in other years. Nevertheless, the court held that the State was not estopped from denying the deductions in audits for subsequent years. The taxpayer was held to be liable for additional taxes, based upon a denial of the deductions, and for interest and penalties.

The extraordinary circumstances necessary to estop the government were found to exist in Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415. There, for more than 50 years, officials of the city of Chicago and State of Illinois had acquiesced in the claim of ownership by the defendant railroad company of highly valuable lakeside land and had permitted the railroad company to enter into many significant contracts and conveyances with reference to its claimed title to the land. The governmental units were estopped from claiming title to the land. In Gannaway v. Barricklow (1903), 203 Ill. 410, 67 N.E. 825, cited by National, an administrator who had paid a real estate tax bill for prior years’ taxes purportedly owed by the decedent was determined to be entitled to a refund because the tax was never properly levied. However, the Gannaway court did not rely upon any theory of estoppel. Here, none of the issues before us concern the question of whether the Secretary had power to assess motor registration fees.

National asserts that the error of the then Secretary in 1979 in denying National’s request to register under the reciprocity agreement estops the Secretary from claiming additional taxes under the prorated systems for the years in question and requires refund of those sums paid. National maintains that this is so even if, as we have ruled, the use of the leased vehicles made National ineligible for registration under the reciprocity agreement in the years in question. It contends that it leased the vehicles in reliance on the Secretary’s determination that it was ineligible for registration under the agreement even when all of its vehicles used were registered in New Jersey.

We are aware of no precedent for giving this type of relief to a taxpayer under circumstances similar to those here. When registration under the agreement was denied in 1979, National had, by a series of letters, sent information to the office of the then Secretary showing that it was entitled to register in that matter but its application was denied. However, the finding of the hearing officer, approved by the Secretary, that there was no fraud or knowing intent upon the part of any governmental official to mislead involved in the denial of the 1979 application was supported by the evidence. National complains that it was not advised by the then Secretary of its right to seek review of the denial of the application. However, we know of no precedent for imposing such a duty on a governmental agency. The officials of National were presumably persons of at least ordinary business experience.

We find Mr. Car Wash, Inc. to be the case most analogous to the case at bar. There, the court did not permit the taxpayer to successfully assert the doctrine of estoppel against the State in a matter concerning the collection of its revenue. Here, the detriment to National in relying on a prior governmental ruling may be greater than that of the taxpayer in Mr. Car Wash, Inc. However, the situation here falls far short of presenting the extraordinary circumstances required by Hickey.

Because of our holding that (1) the Secretary was not estopped from assessing National under the prorated method for 1980, 1981, and 1982, and (2) assessments for those years under that method were otherwise proper, we need not consider whether National’s applications for refunds for the years in question were timely filed. We affirm the decision of the circuit court.

Affirmed.

McCULLOUGH and TRAPP, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    SPRINGFIELD MECHANICAL CORPORATION, Plaintiff-Appellee, v. RONEL TECHNETICS, INC., Defendant (Ronald Shetley et al., Respondents-Appellants; Edward Frank et al., Respondents).
    Fourth District
    No. 4—84—0278
    Opinion filed December 28, 1984.
    Costello, Long & Young, of Springfield, for appellants.
    Brown, Hay & Stephens, of Springfield (Robert H. Stephens and William F. Trapp, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Pursuant to the power given us by Supreme Court Rule 306(a)(iv) (87 Ill. 2d R. 306(a)(iv)), we have granted respondents, Ronald Shetley and Neil Wensel, leave to appeal from an interlocutory order of the circuit court of Sangamon County entered March 20, 1984. That order denied respondents’ motion for transfer of venue of a supplementary proceeding brought against them by plaintiff-petitioner, Springfield Mechanical Corporation (SMC), under the provisions of Supreme Court Rule 277 (87 Ill. 2d R. 277). As the motion for transfer was not timely filed, we affirm the order denying the motion.

Rule 277(d) states that a supplementary proceeding “against a third party must, *** be commenced in a county of this State in which [the party respondent] resides, *** is employed or transacts his business in person,” if some county in the State so qualifies. (87 Ill. 2d R. 277(d).) The motion for transfer was fully supported by affidavit showing that McHenry County was the proper venue for the supplementary proceedings. However, section 2 — 104(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 104(b)) provides that improper venue is waived unless a motion to transfer is filed “on or before the date upon which [the party objecting to the venue] is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint.” (Emphasis added.) Respondents did not move to transfer venue within the time granted them to “move with respect to the complaint.” (Emphasis added.)

The supplementary proceedings arose from a suit commenced in the circuit court of Sangamon County on June 2, 1981, by plaintiff, Springfield Mechanical Corporation (SMC), against defendant, Ronel Technetics, Inc. (Ronel), seeking damages for breach of contract. The record indicates that Ronel had been dissolved, but defendant’s attorneys appeared on behalf of Ronel in August of 1981 and filed interrogatories. On June 11, 1982, Ronel was defaulted, and a judgment was entered in favor of plaintiff for $28,832.42. On September 23, 1982, the instant supplementary proceedings were initiated by SMC against respondents. On October 28, 1982, respondents filed a motion, on special and limited appearance, challenging the court’s jurisdiction of their person. On January 5, 1983, the court denied that motion and ordered all respondents to answer or otherwise plead within 28 days.

The January 5, 1983, order fixed the time in which respondents were required “to answer or move with respect to the” supplementary petition within the meaning of section 2 — 104(b) of the Code of Civil Procedure. (Emphasis added.) Thus, they were required to “move to transfer venue” within that time in order to avoid waiving the issue. On February 2, 1983, respondents filed a motion objecting to both the court’s jurisdiction over them in the supplementary proceedings and also as tó the venue. However, the motion requested -that the case be dismissed rather than that the case be transferred to the proper venue. The earlier pleading by respondents, purporting to be a special and limited appearance, had also questioned the venue but failed to request a transfer to a proper venue. On February 10, 1984, respondents did file a motion which requested transfer to the proper venue, but this occurred well after the date upon which they were required “to move against the pleadings.” (Emphasis added.)

The Historical and Practice Notes following section 2 — 104 explain that a motion to dismiss is no longer the proper way to contest venue. The Notes state:

“No longer may the defendant move to dismiss for lack of venue. [Citation.] The objection must now be cast in the form of a motion to transfer the case to a court of proper venue, and this must be the earliest defensive pleading, with the single exception stated in the subsection.” Ill. Ann. Stat., ch. 110, par. 2 — 104(b), Historical and Practice Notes, at 92-93 (Smith-Hurd 1983).

In a case where the sufficiency of an objection to venue by a respondent to a supplementary proceeding was questioned, the First District held that a motion to quash the citation because of improper venue did not raise the venue issue, because the motion did not request a transfer to a proper venue. (Bank of Hickory Hills v. Hammann (1982), 108 Ill. App. 3d 834, 439 N.E.2d 1048.) Similarly, this court has recently noted that a defendant to a case at law waives the issue of improper venue if a timely and “proper motion to transfer” is not made. (Memorial Medical Center v. Matthews (1984), 128 Ill. App. 3d 820.) We thus conclude that, under section 2 — 104(b) of the Code of Civil Procedure, no request for change of venue is effective unless it contains a request for a transfer to a proper venue.

Here, no proper motion to transfer venue was made until February 10, 1984, which was well after the expiration of respondent’s allotted time of “within 28 days of January 5, 1983,” given them to “move as to the pleadings.” The trial court properly denied the February 10,1984, motion to transfer venue.

In addition to raising the timeliness of respondents’ filing of their motion for transfer of venue, plaintiff also maintains that respondents waived the issue of venue by not raising that issue in an appeal in the underlying case taken from the default judgment entered against Ronel. Although not parties defendant to that case, respondents filed notice of appeal on February 2, 1983, the same day they filed notice of appeal in the supplementary proceedings. In view of our conclusion that respondents failed to timely or properly attack the venue in the supplementary proceeding, we need not decide whether respondents waived the issue by their failure to raise the question of venue in the supplementary proceeding in the appeal of the underlying case. However, it is clear that no waiver resulted. A final order which was appealable had been entered in the underlying case. The proceedings were separate cases. Any ruling denying relief based on improper venue of the supplementary proceedings entered by February 2, 1983, was interlocutory and not appealable as of right.

Our affirmance is for the reasons stated.

Affirmed.

MILLS and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE MILLS

text:
    MARION COSTELLO, Indiv. and as Ex’r of the Estate of Frank H. Costello, Deceased, Plaintiff-Appellant, v. UNARCO INDUSTRIES, INC., et al., Defendants (H.K. Porter Company, Inc., Defendant-Appellee).
    Fourth District
    No. 4—84—0081
    Opinion filed December 28, 1984.

      James Walker, Ltd., of Bloomington, for appellant.
    McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria (James R. Morrison and Karen J. Steele, of counsel), for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Asbestos case.

Mesothelioma.

Complaint dismissed.

We affirm.

October 23, 1981: Frank and Marion Costello filed a multicount complaint against a number of asbestos and asbestos product suppliers. The counts sounded in negligence and product liability and sought damages for personal injury to Frank and economic injury to Marion. The complaints were predicated on Frank’s exposure to asbestos during the early 1940’s, when he was employed at the Seneca shipyards.

April 27, 1982: Frank Costello died as a result of mesothelioma, a malignancy caused by exposure to asbestos particles. Marion was appointed executor of Frank’s estate, and added a count predicated on Frank’s wrongful death.

May 31, 1983: The circuit court dismissed with prejudice the counts of Marion’s complaint sounding in strict liability, reasoning that the counts were time-barred by the operation of section 13 — 213 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13— 213) (statute of repose). The trial court also dismissed the counts sounding in negligence, reasoning that they were insufficient since the plaintiff had failed to allege that the defendants knew, or should have known, that exposure to asbestos particles of the type defendants were involved with would cause a disease of the type contracted by the decedent.

January 4, 1984: A judgment was entered for defendants when plaintiff elected to stand upon her complaint.

This appeal followed.

Before this court — as before the court below — plaintiff raises three basic arguments. First, plaintiff argues that the statute of repose is improperly applied to her in this case. Second, she argues that if the statute of repose is properly applicable to her case, it does not pass constitutional muster in that it fails to provide her with due process of law and violates the equal protection clause of the Illinois and United States constitutions, and it violates the special legislation clause of the Illinois Constitution (Ill. Const. 1970, art. IV, sec. 13), and denies plaintiff the certain remedy called for in article I, section 2, of the Illinois Constitution of 1970. Plaintiff’s third argument is that under Illinois’ liberal pleading requirements, her cause of action sounding in negligence was sufficiently supported by her complaint to withstand defendants’ motion to dismiss. We affirm the dismissal of her complaint.

I. APPLICABILITY-STATUTE OF REPOSE

We turn first to the question of whether the statute of repose was properly applied to this case. The decision of this question must. be reached first, for if the statute was not properly applied we need not reach the constitutional issues.

Both sides join issue concerning the propriety of the application of the statute to bar plaintiff’s cause of action sounding in strict liability. The resolution of the issue requires a reconciliation of two cases involving the statute (Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522; Balzer v. Inland Steel Co. (1981), 100 Ill. App. 3d 1071, 427 N.E.2d 999), as well as construction of language in a supreme court case dealing with the statute of repose limiting actions agáinst physicians in hospitals. Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 447 N.E.2d 408.

Plaintiff’s argument is that the statute cannot be applied to bar her cause of action where the causal occurrence was prior in time to the statute’s passage but the accrual of the action was subsequent. In plaintiff’s view, the decisional case law, represented by Balzer, is clear in its refusal to apply the statute to those injured prior to the effective date of the statute.

In Balzer, plaintiff was injured on January 3, 1978, while working at a sintering plant which had been constructed in the late 1950’s. He filed his complaint on June 21, 1978. The statute of repose became effective January 1, 1979. The defendant filed a motion to dismiss, relying on the statute. The motion was denied and the denial upheld on appeal, the court reasoning that “there was no period of time whatsoever for Balzar to have filed the action after the statute’s effective date.” 100 Ill. App. 3d 1071, 1073, 427 N.E.2d 999, 1001.

Defendants respond — and we agree — that Balzer is distinguishable from the case at bar. In Balzer, the injury occurred (and perhaps more importantly was discovered) on January 3, 1978, over a year before the effective date of the statute. Under these circumstances, the statute could not operate to cut off an accrued right. In the case before the bench, the injury (again most importantly) was not discovered until 1980, a date clearly after the effective date of the statute. In our view, Balzer is distinct on its facts and of no moment to the decision of the case before us.

Defendant proffers Thornton, which we find more analogous to the facts of the case sub judice. In Thornton, plaintiff’s father purchased a rotary mower on July 14, 1969. The statute of repose became effective on January 1, 1979. Plaintiff was-injured (again contemporaneously with the discovery of injury) on July 26, 1979. A complaint was filed on December 28, 1979. The trial court granted summary judgment for defendant, and the court on appeal affirmed.

Plaintiff attempts to distinguish Thornton by arguing that there the injury-causing “exposure” occurred after the effective date of the statute, while here the “exposure” was prior. The distinction is without merit. The date of “accrual” is paramount, not the date of “exposure.” The supreme court has specifically held that in asbestos-related claims a “cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another.” Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169, 421 N.E.2d 864, 868.

The point of accrual of a cause of action takes on additional importance, since the legislature has specifically provided that the statute of repose shall “apply to any cause of action accruing on or after January 1, 1979, involving any product which was in or entered the stream of commerce prior to, on, or after January 1, 1979.” (Emphasis added.) (Ill. Rev. Stat. 1983, eh. 110, par. 13 — 213(g).) This section also serves to distinguish language relied upon by plaintiff and found in Moore.

In Moore, the court was called upon to decide whether section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 212) was to be given a prospective or retrospective application. At stake were three claims which would have been barred by retrospective application, since all were based on injuries discovered more than four years after the injury-causing conduct. The court refused to bar the claims, ostensibly holding that the statute was to be applied prospectively. (As to the nature of the “prospectivity” of the holdings, see our decision in Clark v. St. John’s Hospital (1984), 128 Ill. App. 3d 989.)

From Moore, plaintiff now argues that just as the supreme court would not act to bar a plaintiff’s claim instantaneously upon its discovery in the medical malpractice area, we should not do so in the area of products liability. The argument is flawed, in that it fails to take into account the express terms of the statute under scrutiny as well as limiting language found in the Moore opinion.

In Moore, the supreme court specifically stated:

“In 1976, the Illinois legislature did not clearly indicate its intention as to the applicability of the 1976 amendment. Since there is no express language as to retroactive application, we must give section 21.1 a prospective construction.” Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 235-36, 447 N.E.2d 408, 413.

In our opinion, section 13 — 213(g) (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 213(g)) is a manifest expression of the applicability of the entirety of the product liability statute of repose. The act is to apply to all causes of action accruing on or after January 1, 1979. Since the cause of action in an asbestos case accrues upon the discovery of the injury complained of (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 421 N.E.2d 864), the plaintiff’s cause of action here was barred at the outside in 1957, which was 12 years after the last date on which plaintiff’s decedent allegedly was in proximity to asbestos or asbestos-containing material. Since the claim was barred by 1957, it was equally barred in 1983 when the cause of action was dismissed. In conclusion, we decide that the statute of repose by its plain terms applies to plaintiff’s cause of action.

Indeed, it acts as a bar to plaintiff’s cause of action unless it is unconstitutional, and we now turn to that question.

II. CONSTITUTIONALITY-STATUTE OF REPOSE

Plaintiff’s first argument on this issue is that the statute of repose is unconstitutional because it operates to bar a plaintiff’s recovery before an injurious event occurs, a situation which she claims was condemned in Skinner v. Anderson (1967), 38 Ill. 2d 455, 231 N.E.2d 588.

The argument fails for two reasons. First, the statute of repose does not bar recovery before injury, although it may operate to bar recovery before the damage resulting from the injury is discovered. Second, Skinner held section 29 of the Limitations Act (Ill. Rev. Stat. 1965, ch. 83, par. 24f) unconstitutional because it applied to fewer than all the persons who could be exposed to liability for construction defects since it was confined solely to architects and contractors. The statute of repose under consideration here applies to all product liability actions regardless of the parties sought to be sued. As such, it does not violate the dictates of Skinner.

Although plaintiff has chosen to argue separately that the statute of repose is unconstitutional as special legislation, which is forbidden by article IV, section 13, of the Illinois Constitution, the just-mentioned principle from Skinner disposes of that contention as well.

Plaintiff’s next argument is that the statute violates article I, section 12, of the Illinois Constitution of 1970, which calls for a certain remedy for all injuries and wrongs. It is well established that the aforementioned section of the constitution has been uniformly construed as expressing a philosophy rather than as imposing a mandate. (Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 281 N.E.2d 659.) As such, the section’s force is greatly abated when proffered as a source upon which litigants might attempt to hang their constitutional hats. In any event, the statute of repose here speaks only to product liability actions sounding in strict liability in tort but does not abrogate actions sounding in common law negligence. Under these circumstances, we cannot say that plaintiff here does not have a certain remedy — only that the remedy must be sought down a different avenue than product liability.

Next, plaintiff argues that the statute of repose is unconstitutional because it either violates dictates of due process or the equal protection clauses of the Illinois and United States constitutions. The test to be applied when judging such claims is whether “the particular classification is based upon some real and substantial difference in kind, situation or circumstance in the persons or objects on which the classification rests, and which bear a rational relation to the evil to be remedied and the purpose to be attained by the statute ***.” Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179, 194, 106 N.E.2d 124, 132.

The primary defect complained of by defendant is that the statute of repose relies entirely on the passage of time to bar potential causes of action. This argument is wholly without merit. It bypasses completely the aforementioned passage from Grasse. Applying the test of Grasse, we find that first, the particular classification (product liability actions based on strict liability in tort) is based upon a real and substantial difference in circumstances as to the person on which the classification rests. Manufacturers and sellers are faced ■with the circumstance of increased risk of loss in product suits due to the nature of strict liability.

Second, the classification bears a rational relationship to the evil to be remedied and the purposes of the statute. The evil to be remedied by this statute manifested itself in insurance premiums faced by manufacturers, which were increasing in geometric progressions in the mid and late 1970’s. (See generally Eldredge & Houlihan, Limitations of Action; Strict Liability in Tort — The Legislature Has Intervened, 67 Ill. B.J. 214 (1978).) The statute’s purpose was patently to provide a cutoff date for claims asserted under the doctrine of strict liability.

Third, the cutoff date provides a twofold solution which is rationally related to the evil sought to be remedied. Those subject to strict liability claims need not worry about defending suits stemming from transactions which occurred so long ago that evidence likely has been lost or destroyed and memories of witnesses have been dulled by the passage of time. These considerations were expressed and admitted as problems in defending stale suits in Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489. Further, upon the introduction of a new product, companies may begin allocating the risk of lawsuits, such risks to be spread over the 10-year period of the statute. This should help stabilize prices and bring more certainty to commercial ventures.

In conclusion, section 13 — 213 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 213) classifies product liability actions based on real and substantial differences in the circumstances faced by persons subject to them. It then provides a solution which is rationally related to the evil sought to be remedied. As such, it passes constitutional muster against claims that it violates the requirements of due process or the equal protection of the laws. Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179, 106 N.E.2d 124.

III. SUFFICIENCY-NEGLIGENCE COUNT

In addition to plaintiff’s count sounding in product liability, her complaint also sought to state a cause of action in negligence. The counts all alleged in pertinent part:

“2. Hereafter ‘asbestos’ includes asbestos fiber and products containing asbestos.
* * *
13. Defendant sold asbestos which was used at the shipyard and to which Frank H. Costello was exposed while he worked at the shipyard.
14. Asbestos disease is caused by exposure to asbestos.
15. Frank H. Costello contracted asbestos disease as a result of his exposure to asbestos.
16. Frank H. Costello died of asbestos disease on April 27, 1982.
17. Before Defendant sold any of the asbestos used at the Seneca shipyard, it knew that the use of its products would generate asbestos dust and knew that exposure to asbestos dust caused asbestos disease.”

The trial court held that plaintiff’s negligence counts did not state a cause of action and needed to allege “more particularly that defendants knew or should have known that exposure to asbestos particles of the type defendants were involved with would cause disease of the type contracted by plaintiff’s decedent.” In this appeal, plaintiff argues that it was error for the circuit court to dismiss the appeal, since her pleadings satisfied the fact-pleading requirements of this State. She goes on to argue that the trial court erred in ostensibly requiring a plaintiff in an asbestos action to plead with particularity the type of asbestos particle to which the plaintiff was exposed.

Defendants respond that the trial court’s order misapprehended their motion arguments in reference to particularization of asbestos particles, but that the order should nonetheless be affirmed. We agree that the complaint seeking to allege a cause of action in negligence should be more specific than the one before this court and therefore affirm the dismissal. We do not agree that the written order entered by the trial court accurately reflects the facts which must be pleaded in asbestos litigation, specifically insofar as it purports to require plaintiffs to plead with particularity the type of asbestos particles encountered.

To our view, the complaint is insufficient in two aspects. First, it fails to specify the disease contracted by plaintiff. Second, it fails to indicate where in the chain of production the various-named defendants were located and thus does not apprise them of sufficient facts upon which they may rely in making a defense.

Turning to the first defect, we take judicial notice of the fact that to date many diseases are claimed to result from asbestos exposure. The list includes asbestosis, lung cancer, intestinal cancer, various heart conditions, pleural mesothelioma, and peritoneal mesothelioma. A defendant in an asbestos case surely has a right to know, in advance of discovery, what health problems have been caused by his alleged negligent behavior. The failure to allege the specific disease, or alternative diseases if the plaintiff is actually uncertain, seems to us to be a minimum requirement of pleading. To simply allege that plaintiff contracted asbestos disease is insufficient.

The second flaw in plaintiff’s complaint stems from the use of boiler-plate pleading paragraphs. In count I of plaintiff’s second amended complaint, paragraphs 3 through 11 each identically alleged that nine different defendants were corporations in McLean County, which were “during the time relevant to the allegations herein in the business of distributing asbestos.” “Asbestos” is previously defined as asbestos fiber and products containing asbestos in the complaint.

We view these allegations as insufficient in that they fail to apprise the defendants of both the injury-producing product and the place in the chain of production of the products which they were alleged to have occupied.

Under the fact-pleading requirements of Illinois, the complaints were insufficient in the two aforementioned aspects and were properly dismissed by the trial court. While our analysis of the defects is contrary to that reflected by the order of the trial court, it is well established that appellees in reviewing courts may rely on any matter of record in affirming a decision rendered by a court below. Kaibab Industries, Inc. v. Family Ready Homes, Inc. (1983), 111 Ill. App. 3d 965, 444 N.E.2d 1119.

Since the record here amply supports the dismissal of plaintiff’s cause of action, the decision of the trial court is affirmed.

Affirmed.

WEBBER and TRAPP, JJ., concur.