Askey v. Comm PA Dept Welfare

• Court: Court of Appeals for the Third Circuit
• Decided: November 27, 2002
• Docket: 02-1721
• Status: Unpublished

Opinion

Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit

11-27-2002

Askey v. Comm PA Dept Welfare Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1721

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 02-1721

JOHN W. ASKEY; BARBARA ASKEY,

Appellants

v.

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE

Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 01-cv-000640) District Judge: Honorable William L. Standish

Submitted Under Third Circuit LAR 34.1(a) November 21, 2002

Before: BARRY and AMBRO, Circuit Judges DOWD*, District Judge

(Opinion filed : November 27, 2002)

OPINION

*Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation. AMBRO, Circuit Judge

The appellants, John and Barbara Askey, filed in the United States Bankruptcy Court for

the Western District of Pennsylvania this adversary proceeding against the appellee, the

Commonwealth of Pennsylvania Department of Public Welfare (“DPW”). The DPW filed a

motion to dismiss, asserting Eleventh Amendment sovereign immunity from the lawsuit. The

Bankruptcy Court granted the motion to dismiss on this ground, and the District Court affirmed.

As those Courts recognized, this case is controlled by our decision in In re Sacred Heart Hosp.

of Norristown, 133 F.3d 237 (3d Cir. 1998), and so we also affirm.

We further agree with the District Court’s conclusion that, because the Askeys did not

attempt in the Bankruptcy Court to amend their complaint to sue for prospective injunctive relief

from the Secretary of the DPW in his official capacity, they waived the Ex Parte Young, 209

U.S. 123 (1908), argument that they now seek to present.

Accordingly, we affirm the dismissal of this adversary proceeding.

2 TO THE CLERK:

Please file the foregoing Opinion.

By the Court,

/s/ Thomas L. Ambro Circuit Judge