Askey v. Pennsylvania Department of Public Welfare

52 F. App'x 593

Opinion

OPINION

AMBRO, Circuit Judge.

The appellants, John and Barbara As-key, 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 As-keys 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, 28 S.Ct. 441, 52 L.Ed. 714 (1908), argument that they now seek to present.

Accordingly, we affirm the dismissal of this adversary proceeding.