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Pisciotto v. National Heater Co.

JULY 3, 1974.

SUE PISCIOTTO, PLAINTIFF-APPELLANT,

v.

NATIONAL HEATER COMPANY, DEFENDANT-APPELLEE. — (LEONARD POCHTER, D/B/A ACME TEMPERATURE CONTROL CO., DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

This is an appeal from the order of the circuit court of Cook County dismissing plaintiff's wrongful death action as to defendant National Heater Company. The trial court dismissed the action as to National Heater Company with prejudice for plaintiff's failure to use reasonable diligence to obtain service of process on National Heater Company after the applicable statute of limitations had run. (Ill. Rev. Stat. 1971, ch. 110A, par. 103(b).) The only issue raised is whether the trial court abused its discretion in dismissing plaintiff's complaint for lack of reasonable diligence in obtaining service of process.

We affirm.

On January 30, 1970, plaintiff, Sue Pisciotto, individually, and as administratrix of the estate of Philip Pisciotto, deceased, filed a complaint against National Heater Company and Leonard Pochter, d/b/a Acme Temperature Control Co. Plaintiff's six-count complaint alleged that the deceased, while exercising due care, was injured when a heater at the Devoe Paint Company plant, 2421 So. 25th Avenue, Boadview, Illinois, exploded. Deceased was an employee at the plant. Plaintiff charged National Heater Company with negligence and breach of warranty. She charged Leonard Pochter with negligence for failure to properly adjust and repair the gas heater.

The record shows that on January 30, 1970, a summons was issued for Pochter, and was returned not found on February 18, 1970. On February 24, 1970, an alias summons was issued for Pochter and was again returned not found on February 28, 1970. On June 22, 1971, an alias summons was issued for Pochter and he was finally served on June 24, 1971.

On April 28, 1971 an alias summons was issued for National Heater Company, but was returned not found on April 30, 1971. This summons contained the following directions:

"PLEASE SERVE:

NATIONAL HEATER COMPANY a/k/a NATIONAL AIR SYSTEM DIVISION OF RHEEM MANUFACTURING COMPANY c/o C.T. CORPORATION SYSTEM 208 South LaSalle St. Chicago, Illinois"

On June 22, 1971, an alias summons was issued for National Heater Company and served on Rheem Manufacturing Company on June 23, 1971. This summons contained the following directions:

"PLEASE SERVE DEFENDANT AT:

2. RHEEM MANUFACTURING COMPANY c/o C.T. CORPORATION SYSTEM NATIONAL HEATER COMPANY a/k/a NATIONAL AIR SYSTEM DIVISION 208 South LaSalle St. Chicago, Illinois AN 3-1414"

Supreme Court Rule 103(b) provides in pertinent part:

"(b) Dismissal for Lack of Diligence.

If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be ...


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