ELD-007 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 09-4748

___________ TED A. MCCRACKEN, Appellant

v. EXXON/MOBIL; SUN OI L COMPANY (SUNOCO); SHELL OIL COMPANY; TEXACO; BRITISH PETROLEUM; CONO COPHILLIPS, COMPANY; HESS OIL COMPANY; JOHN DOE VICE PRESID ENT, MARKETING EXXON/MOBIL

COMPANY, HIS PREDECESSOR AND SUCCESSOR; JOHN DOE 1 VICE PRESIDENT, ENGINEERI NG, EXXON/MOBIL COMPAN Y, 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 Circu it LAR 27.4 and I.O.P. 10.6 October 28, 2010 Before: FUENTES, SMIT H 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 forthe Eastern District of Pennsylvania that granted defendants’ motions to dismiss his complaint. Appellees (defe ndants below) have filed moti ons to summarily dismiss the appeal or to summarily affirm the District Court’s order. McCracken, proceeding pro se, filed a co mplaint on June 26, 2008 against several gasoline and oil companies. The District Court construed McCracken’s complaint as alleging that the companies “sold him gasolin e, 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 can cer.” Dist. Ct. Op. at 3. McCracken sued based on several theories of liability, most of which sound ed 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 di smiss, 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 stat ute of limitations. Mc Cracken 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 stat ute of limitations applied to his personal injury claims.

1 McCracken has not contested the Dist rict 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 2The District Court recogniz ed that there was not comp lete 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 deficien cies of the complaint; i.e. , the untimeliness of the personal injury claims, and the lack of merit as to the remaining timel y-filed claims. The District Court also dismissed without prejudice claims for breach of warra nty of merchantability filed against Texaco and Hess Oil Company. 3 McCracken timely appealed. 4 A District Court order dismissing a comp laint without prejudice is not a final and appealable order where the plai ntiff 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 Dist rict Court that the cl aims 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 po ssible dismissal because it appeared to be untimely filed. Although the District Court docketed the Notice of Appeal on the 31 st day following the District Court’s orde r, a date stamp on the Notice of appeal supports McCracken’s allegation that he pl aced the notice of appeal in the District Court’s after-hours drop box on the 30 th day. The appeal is thus timely. Fed. R. 3from October 1997 until the date he was di agnosed with cancer on June 21, 2005. Complaint, ¶ 20. We agree w ith the District Court that th e latest date for bringing the breach of warranty claims was four years from June 21, 2005; ab out 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 file d against Texaco and Hess Oil Company November 16, 2009. As McCracken could no longer cure on the deficiency as to those claims, the District Court’s or der is final and appealable. The District Court properly found that McCracken’s personal injury claims would be barred by Pennsylvania’s two-year stat ute of limitations for such claims. See 42 Pa Con Stat. Ann. § 5524 (West 20 02). McCracken argues that the period of limitations should run from when he disc overed his cancer, on June 21, 2005. However, as the District Court noted, McCracken’s claims ar e time-barred even if one applies the date when McCracken discovered his cancer, rather than some earlier da te when the injury was sustained. McCracken argues that a thre e-year period of limitations applies, but he provides no legal support for his argument. We further agree with th e District Court that McCracken’s claims for breach of warranty claims were timely when filed, but that t .

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

Ap e the

t that the p. P. 4(a)(1). 5 June 21, 2009 was a Sunday. 6 In any event, McCracken’s summary action response does not challeng District Court’s findings regardin g 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. McCr acken has waived any argumen 45 personal injury claims and br each of warranty claims, that allowing McCracken to amend his complaint to create diversity of citizenship would be futile. For the foregoing reasons, we will a ffirm 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).