Kalodner, Chief Judge, and Hastie and Smith, Circuit Judges.
This appeal is from the District Court's dismissal of the plaintiffs' diversity action on the ground that it was barred by the Delaware Statute of Limitations which provides that actions for personal injuries, whether in contract or tort, must be brought within two years.*fn1
The action was brought in the District Court of Delaware April 29, 1964 -- four years after the alleged cause of action accrued. The Complaint alleged that on April 29, 1960, there had been administered to the wife plaintiff in the course of her treatment, in a Pennsylvania hospital, for depressive disorders, the defendant Upjohn Company's drug Monase, and in May 1960, the defendant Lakeside Laboratories' drug Katron; that the drugs had caused her to suffer blurred vision, color-blindness and other ills, necessitating extensive medical care; and that the defendants had breached implied and express warranties that the specified drugs were "fit and safe for human use and consumption".
The plaintiffs contended below, as they do here, that the 2-year period in the Delaware statute of limitations does not bar their action for the reason that Section 2-725 of the Uniform Commercial Code, as enacted by Pennsylvania in 1953, 12A P.S.,*fn2 which prescribes a 4-year statute of limitations for the commencement of an action for breach of warranty, created a "built-in" "substantive right" which is given effect under the Delaware conflict rule as construed in Pack v. Beech Aircraft Corporation, 11 Terry 413, 50 Del. 413, 132 A.2d 54, 67 A.L.R.2d 207 (1957), later discussed.
The District Court chose to premise its dismissal of the action on its view that Section 2-725 of the Pennsylvania Code is "procedural" and not "substantive" for the reasons that the right to bring an action for breach of warranty was not created by the Code but existed prior to its enactment, and that "This alone prevents the four year statute of limitations which is embodied in the Code from having the status of a 'built-in' statute which is a substantive part of a statutory right or liability", and further that "the legislature of Pennsylvania did not intend that the four year period of limitations should be a substantive part of the right." Natale v. Upjohn Company, 236 F. Supp. 37, 41, 42 (D.Del.1964).
While we are in accord with the view expressed by the District Court, as developed in its opinion, we prefer to affirm its dismissal of the instant action on the ground that the Delaware conflict of law rule, decisional and statutory, independently, so required, without more.
This is a diversity action and where a federal court has jurisdiction by virtue of diversity it must give effect to the conflict of law rule of the state in which the action is brought. Klaxon Company v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Hartwell v. Piper Aircraft Corporation, 186 F.2d 29, 30 (3 Cir. 1951).
The Delaware conflict rule is incorporated in its Borrowing Statute, 10 Del.C. § 8120, which became effective April 9, 1947. The Statute provides as follows:
"Cause of action arising outside State --
"Where a cause of action arises outside of this State, an action can not be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state or country where the cause of action arose, for bringing an action upon such cause of action. Where the cause of action originally accrued in favor of a person who at the time of such accrual was a resident of this State, the time limited by the law of this State shall apply." (emphasis supplied)
In the instant case the action, as earlier stated, was brought after the 2-year period fixed in the Delaware Statute of Limitations had expired. Since the Delaware 2-year limitation is "shorter" than the 4-year limitation for the bringing of an action for personal injuries arising out of breach of warranty provided by the Pennsylvania Code, it prevails under the clear and explicit provisions of the Delaware Borrowing Statute.
The Borrowing Statute is consistent with the state's decisional law prior to its enactment.
In White v. Govatos, 1 Terry 349, 40 Del. 349, 10 A.2d 524 (Super.Ct.1939), which preceded by some eight years enactment of the Borrowing Statute, it was held that when a statute of limitations of the forum had expired, as in the instant case, an action was barred even though the period of limitation fixed ...