ELD-007 NOT PRECEDENTIAL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 

November 16, 2009. As McCracken could no longer cure

on 

 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 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 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 argumen

4 
5 

 

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).