APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil Action No. 4725).
Seitz, Chief Judge, Rosenn and Garth, Circuit Judges. Garth, Circuit Judge, dissenting.
This is an appeal from an order of the district court denying plaintiff's and granting defendants' motion for summary judgment based on the Delaware statute of limitations.
We shall summarize plaintiff's complaint. Plaintiff was employed by Penn Central Transportation Company. The defendant Local Lodge 1284, International Association of Machinists, etc. ("Lodge") was the collective bargaining representative of the Penn Central employees pursuant to Section 2, Fourth of the Railway Labor Act, 45 U.S.C. § 152. The individual defendant, Bazela, is chairman of the Lodge. The collective bargaining agreement provided a grievance and arbitration procedure to resolve disputes between employees and Penn Central.
On September 11, 1970, plaintiff unsuccessfully protested when his superior ordered him to manually lift several spring hangers. Plaintiff then complained to his union committeeman, the defendant Bazela, that he was being treated unfairly. Bazela refused to accept plaintiff's grievance and ordered plaintiff to obey his superior's order. Bazela took this action knowing that plaintiff had a prior back injury and that it was unsafe to manually lift spring hangers. Plaintiff proceeded to lift the hangers and suffered serious injuries to his back.
On September 7, 1973, more than two but less than three years after the injury, plaintiff brought this action, charging that the defendants had breached their duty of fair representation by arbitrarily and in bad faith rejecting his grievance and that this breach proximately caused his injuries. The district court did not reach this issue because it granted defendants' motion for summary judgment on the ground that plaintiff's action was barred by Delaware's*fn1 two year statute of limitations governing suits for personal injuries. 10 Del. C. § 8118.
Plaintiff challenges this decision, contending instead that Delaware's three year statute controls this action. 10 Del. C. § 8106. Although he seeks damages for personal injuries suffered by him, plaintiff asserts that his claim is a statutory cause of action*fn2 arising under the Railway Labor Act, 45 U.S.C. § 151 et seq., and as such is embraced within 10 Del. C. § 8106 which provides in pertinent part:
". . . no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action. . . ."
Section 8106, however, explicitly states that it is "subject . . . to the provisions of [section] . . . 8118 of this title." That section provides:
"No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that the alleged injuries were sustained."
Since we are construing a Delaware statute we look to the pertinent Delaware law. The statements most relevant to our construction problem are found in the Delaware Superior Court case of Patterson v. Vincent, 44 Del. 442, 61 A.2d 416 (1948). There plaintiff claimed personal injuries resulting from breach of contract and argued that her claim was governed by § 8106. The court disagreed, reasoning that although plaintiff's cause of action was based on breach of contract, rather than tort, § 8118 controlled because she was seeking recovery for personal injuries. Pertinent here was the court's statement that
". . . the Act here involved is in no way concerned with the form of action that is brought. . . . On its face, it plainly covers all actions for the recovery of ...