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


7-30-2002

In Re: Vegliante
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3972




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Recommended Citation
"In Re: Vegliante " (2002). 2002 Decisions. Paper 463.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/463


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                                                                             NOT PRECEDENTIAL

                        IN THE UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT


                                            No. 01-3972


                               In Re:
                                        Rudolph Vegliante, Jr.
                                                     Debtor

                                        Rudolph Vegliante, Jr.,
                                                      Appellant

                                                  v.

                           STATE OF NEW JERSEY, DEPARTMENT
                          OF TREASURY, DIVISION OF TAXATION




                            Appeal from the United States District Court
                               for the Middle District of Pennsylvania
                                    (D.C. Civil No. 01-cv-00788)
                            District Judge: Honorable James M. Munley


                                        Argued June 27, 2002

                        Before: AMBRO and STAPLETON, Circuit Judges
                                  O’NEILL*, District Judge


                                        (Filed: July 30, 2002 )


        * Honorable Thomas N. O’Neill, Senior United States District Court Judge for the
Eastern District of Pennsylvania, sitting by designation.


                                               Brett J. Riegel, Esquire (Argued)
                                                 Amori & Riegel
                                                 717 Sarah Street
                                                 Stroudsburg, PA 18360
                                                        Attorney for Appellant

                                                 David Samson
                                                 Attorney General of New Jersey
                                                 Patrick DeAlmeida
                                                 Deputy Attorney General of Counsel
                                                 Tracey E. Richardson (Argued)
                                                 Deputy Attorney General on the Brief
                                                 Office of Attorney General of New Jersey
                                                 Department of Treasury, Division of Taxation
                                                 25 Market Street, P.O. Box 106
                                                 Trenton, NJ 08625
                                                         Attorneys for Appellee



           Transcribed by: Geraldine C. Laws, CET

                (Proceedings recorded by electronic sound recording;
                transcript prepared by AAERT-certified transcriber.)

                        (The following bench opinion was delivered in open court:)




                                           BENCH OPINION

AMBRO, Circuit Judge

        (The following bench opinion was delivered in open court:)

                THE HONORABLE JUDGE AMBRO: The Supreme Court stated in

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73 (1996), that "the 11th Amendment

restricts the judicial power under Article III, and Article I cannot be used to circumvent the

constitutional limitations placed upon federal jurisdiction." In In Re: Sacred Heart Hospital


                                                     2
of Norristown, 133 F.3d 237 (3d Cir. 1998), we observed that "since Seminole Tribe,

Section 5 of the 14th Amendment has been the sole basis for Congress to abrogate the

States' immunity under the 11th Amendment." Id. at 242 (quoting College Savings Bank v.

Florida Prepaid Post-Secondary Education Expense Board, 131 F.3d 353, 358 (3d

Cir.1997)). We held in Sacred Heart that the bankruptcy clause is not a valid source of

abrogation power. Sacred Heart, 133 F.3d at 243.

        In this case, Vegliante asks us to allow him to pursue an adversary proceeding in

bankruptcy against the State of New Jersey. The adversary proceeding at issue is plainly a

suit within the meaning of the 11th Amendment. Missouri v. Fiske, 290 U.S. 18, 26 (1993)

(quoting Cullens v. Virginia, 19 U.S. 264 (1821)). The State of New Jersey received a

summons requiring it to appear in court or face a default judgment against it. That qualifies

as a suit. See id.

        Vegliante seeks to prosecute a suit against the State of New Jersey without its

consent. We cannot oblige that request in light of Sacred Heart's ruling on state sovereign

immunity. Therefore, the District Court's order is affirmed.




                                                    3
TO THE CLERK:

          Please file the foregoing Bench Opinion.




                                          By the Court,




                                          /s/ Thomas L. Ambro
                                         Circuit Judge




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