                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"Askey v. Comm PA Dept Welfare" (2002). 2002 Decisions. Paper 780.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/780


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                                                                             NOT PRECEDENTIAL

                             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




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