ELD-007                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 09-4748
                                  ___________

                            TED A. MCCRACKEN,
                                           Appellant

                                        v.

   EXXON/MOBIL; SUN OIL COMPANY (SUNOCO); SHELL OIL COMPANY;
  TEXACO; BRITISH PETROLEUM; CONOCOPHILLIPS, COMPANY; HESS OIL
   COMPANY; JOHN DOE VICE PRESIDENT, MARKETING EXXON/MOBIL
    COMPANY, HIS PREDECESSOR AND SUCCESSOR; JOHN DOE 1 VICE
 PRESIDENT, ENGINEERING, EXXON/MOBIL COMPANY, HIS PREDECESSOR
                          AND SUCCESSOR
                ____________________________________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                           (D.C. Civil No. 08-CV-02932)
                 District Judge: Honorable Mitchell S. Goldberg
                  ____________________________________

                     Submitted for Possible Summary Action
                Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 October 28, 2010

           Before: FUENTES, SMITH and VANASKIE, Circuit Judges

                       (Opinion filed: November 8, 2010)
                                   _________

                                   OPINION
                                   _________

PER CURIAM

    Ted A. McCracken appeals from an order of the United States District Court for
the Eastern District of Pennsylvania that granted defendants’ motions to dismiss his

complaint. Appellees (defendants below) have filed motions to summarily dismiss the

appeal or to summarily affirm the District Court’s order.

       McCracken, proceeding pro se, filed a complaint on June 26, 2008 against several

gasoline and oil companies. The District Court construed McCracken’s complaint as

alleging that the companies “sold him gasoline, which he used to fuel his vehicles,

allowing them to travel at increased speeds, and exposing him to heightened levels of

radiation causing him to contract thyroid cancer.” Dist. Ct. Op. at 3. McCracken sued

based on several theories of liability, most of which sounded in personal injury. Id. at 6.

The District Court noted that McCracken also raised claims alleging breach of express

and implied warranties of merchantability. Id. at 9. 1

       Defendants filed various motions to dismiss, asking that the complaint be

dismissed for lack of subject matter jurisdiction,2 because it failed to state a claim, and

because the claims were barred by the statute of limitations. McCracken filed four

motions to amend his complaint, seeking to remove Sunoco from the complaint, so that

there would be complete diversity of citizenship. See 28 U.S.C. § 1332. McCracken’s

responses to the motions to dismiss also opposed dismissal on statute of limitations

grounds, because he believed a three-year statute of limitations applied to his personal

injury claims.


   1
     McCracken has not contested the District Court’s understanding of his
   allegations or his theories of liability.
   2
     Defendants argued that jurisdiction could not be based on diversity of
   citizenship, because McCracken and one of the defendants (Sunoco) were both
                                              2
       The District Court recognized that there was not complete diversity between the

Plaintiff and the Defendants in the complaint as filed. The Court determined that

amendment would be futile, however, because McCracken’s proposed amendments did

not cure the other deficiencies of the complaint; i.e., the untimeliness of the personal

injury claims, and the lack of merit as to the remaining timely-filed claims. The District

Court also dismissed without prejudice claims for breach of warranty of merchantability

filed against Texaco and Hess Oil Company. 3 McCracken timely appealed. 4

       A District Court order dismissing a complaint without prejudice is not a final and

appealable order where the plaintiff can cure the deficiency and refile the complaint.

Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir.2002). Where the statute of limitations

has run by the time the court orders dismissal without prejudice, the plaintiff cannot cure

the deficiency, and the order is final and appealable. Brennan v. Kulick, 407 F.3d 603,

606 (3d Cir. 2005). We agree with the District Court that the claims for breach of

warranty of merchantability are subject to a four-year statute of limitations under

Pennsylvania law. 13 Pa. Con. Stat. Ann. § 2725(a). Pursuant to § 2725(b) of that

statute, the period of limitations runs from the time the allegedly defective product was

sold. McCracken’s complaint alleged that he purchased gasoline from the defendants


    Pennsylvania citizens.
   3
     The Court dismissed those claims without prejudice under Fed. R. Civ. P. 4(m)
   and 41(b) for failure to effect service.
   4
     This appeal was originally listed for possible dismissal because it appeared to be
    untimely filed. Although the District Court docketed the Notice of Appeal on the
   31st day following the District Court’s order, a date stamp on the Notice of appeal
    supports McCracken’s allegation that he placed the notice of appeal in the District
   Court’s after-hours drop box on the 30th day. The appeal is thus timely. Fed. R.
                                              3
from October 1997 until the date he was diagnosed with cancer on June 21, 2005.

Complaint, ¶ 20. We agree with the District Court that the latest date for bringing the

breach of warranty claims was four years from June 21, 2005; about June 22, 2009. 5

The statute of limitations had thus expired by the time the District Court dismissed

without

prejudice the breach of warranty claims filed against Texaco and Hess Oil Company on

November 16, 2009. As McCracken could no longer cure the deficiency as to those

claims, the District Court’s order is final and appealable.

       The District Court properly found that McCracken’s personal injury claims would

be barred by Pennsylvania’s two-year statute of limitations for such claims. See 42 Pa.

Con Stat. Ann. § 5524 (West 2002). McCracken argues that the period of limitations

should run from when he discovered his cancer, on June 21, 2005. However, as the

District Court noted, McCracken’s claims are time-barred even if one applies the date

when McCracken discovered his cancer, rather than some earlier date when the injury

was sustained. McCracken argues that a three-year period of limitations applies, but he

provides no legal support for his argument. We further agree with the District Court that

McCracken’s claims for breach of warranty claims were timely when filed, but that they

are without merit. 6 The Court thus was correct to find, given the problems with the


    App. P. 4(a)(1).
       5
         June 21, 2009 was a Sunday.
       6
         In any event, McCracken’s summary action response does not challenge the
    District Court’s findings regarding the breach of warranty claims;
   rather, he asks that this Court remand the matter so that he could amend the
    complaint and redraft those claims. McCracken has waived any argument that the
                                              4
personal injury claims and breach of warranty claims, that allowing McCracken to amend

his complaint to create diversity of citizenship would be futile.

       For the foregoing reasons, we will affirm the District Court’s judgment.




   District Court incorrectly concluded that his breach of warranty claims were
   without merit. F.D.I.C. v. Deglau, 207 F.3d 153, 169-70 (3d Cir. 2000).
                                              5
