globalink-certiorari

No. ____
_________________________________________________

In The
Supreme Court of the United States
______

ROBERT B. SKLAROFF, M.D.
Petitioner,

COMMONWEALTH OF PENNSYLVANIA
BY D. MICHAEL FISHER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF
THE COMMONWEALTH OF PENNSYLVANIA,
and
PHILIP MORRIS INCORPORATED, ET AL.,
Respondents.
______

On Petition For A Writ Of Certiorari
To The Pennsylvania Supreme Court
_________________________________________________

PETITION FOR A WRIT OF CERTIORARI
_________________________________________________

Robert B. Sklaroff, MD
pro se
Suite #130
50 East Township Line Road
Elkins Park, PA 19027-2253
(215) 663-8200

May 9, 2000

QUESTIONS PRESENTED

I. Whether the petitioner—functioning as a citizen, taxpayer, father, activist, physician, private Attorney General and litigant—can be deprived of standing to intervene prior to final approval of the Master Settlement Agreement between the Tobacco Industry and the Commonwealth of Pennsylvania, under state and federal law, based upon his current and future civil and due-process constitutional rights.

II. Whether the petitioner’s pending litigation against one member of the tobacco industry constitutes a legally enforceable interest, representing a case or controversy that continues to be ripe for adjudication and that, therefore, reflects a direct, substantial and immediate interest in the Master Settlement Agreement sufficient to merit being conferred standing to intervene.

III. Whether granting standing to the petitioner would inter alia yield the required judicial review of the Master Settlement Agreement’s Immunity and Offset Clauses which, putatively, are—individually and in the aggregate—ultra vires, overly broad, complex, excessively ambiguous, and inconsistent with public policy.

IV. Whether granting standing to the petitioner would inter alia yield the required judicial review of the lack of an evidentiary justification for the Master Settlement Agreement’s denial of future rights of youth—putatively, the class of individuals for whom the litigation had been filed—to seek redress.

PARTIES TO THE PROCEEDING

The petitioner is Dr. Sklaroff; initially, three individuals and thirteen organizations filed for intervention and, subsequently, these three individuals and four of the organizations filed an appeal. Subsequently, the other six parties (except Dr. Sklaroff) withdrew their appeals.

The plaintiff in the original litigation was Attorney General D. Michael Fisher, Esquire, who filed on behalf of the Commonwealth of Pennsylvania.

The defendants in the original litigation were:

Philip Morris Incorporated
R. J. Reynolds Tobacco Company
Brown & Williamson Tobacco Corporation
B.A.T. Industries, P.L.C.
The American Tobacco Company, Inc.
Brown & Williamson Tobacco Corporation
Lorillard Tobacco Company
Liggett Group, Inc.
United States Tobacco Company
The Tobacco Institute, Inc.
The Council for Tobacco Research-U.S.A., Inc.
Smokeless Tobacco Council, Inc.
Hill and Knowlton, Inc.

TABLE OF CONTENTS

QUESTIONS PRESENTED ……..…………..…………… i

PARTIES TO THE PROCEEDING ..……………………. ii

TABLE OF CONTENTS …………………….………... iii-v

TABLE OF AUTHORITIES …………………………... vi-x

OPINIONS BELOW ……..…...…………….…...……….. 1

JURISDICTION ……………………..……..……………... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS. 1

STATEMENT OF THE CASE ...…………………..……... 2

I. Introduction …..………………………………………. 3

II. Procedural History ..……………...…………………… 5

III. The Master Settlement Agreement ………… ………… 6

a. Releasing Parties and Released Claims ………..….. 7

b. Offset ..……………….……………………………. 8

c. Scope ..……………….……………………………. 9

IV. Dr. Sklaroff and the Coalition for a Tobacco Free PA ... 9

V. Dr. Sklaroff’s Challenge in Pennsylvania …………… 10

VI. The Trial Court Hearings and Opinion ….…………... 11

VII. Philip Morris Financing of Wawa Billboard Ads … 15

ARGUMENT SUMMARY & REVIEW STANDARDS .. 15

I. The petitioner—functioning as a citizen, taxpayer, father,
activist, physician, private AG and litigant—should not be deprived of standing to intervene prior to final approval of the Master Settlement Agreement between the Tobacco Industry and the Commonwealth of Pennsylvania, under state and federal law, based upon his current & future civil and due-process constitutional rights ……………………………………..…………... 17

a. Dr. Sklaroff has the capacity to seek relief on behalf of and/or generally applicable to the general public by filing a taxpayer lawsuit ……..…..…………... 18

b. In addition to his Wawa cases against PM and the CoP AG, Dr. Sklaroff can articulate two causes-of-action based upon tax-related implications of the MSA justifying a taxpayer suit ..…………….…..……… 22

c. Dr. Sklaroff has the legal right to seek relief on behalf of and/or generally applicable to the general public by filing generic litigation ..………...……. 22

d. Constitutional Concerns ..………………………. .23

II. The petitioner’s pending litigation against one member of the tobacco industry constitutes a legally enforceable interest, representing a case or controversy that continues to be ripe for adjudication and that, therefore, reflects a direct, substantial and immediate interest in the Master Settlement Agreement sufficient to merit being conferred standing ………..…………………………….……… 23

III. Granting standing to the petitioner would inter alia yield the required judicial review of the Master Settlement Agreement’s Immunity and Offset Clauses which, putatively, are—individually and in the aggregate—ultra vires, overly broad, complex, excessively ambiguous, and inconsistent with public policy ..……………….. 24

a. The Trial Court failed to analyze the MSA ..……... 25

b. II (pp) must be struck from the MSA ..………... 26

c. XII (b) must be struck from the MSA ..……….. 27

IV. Granting standing to the petitioner would inter alia yield the required judicial review of the lack of an evidentiary justification for the Master Settlement Agreement’s denial of future rights of youth—putatively, the class of individuals for whom the litigation had been filed—to seek redress ..…………….………………………….. 28

CONCLUSION ………………………………………….. 30

APPENDIX

A Philadelphia Court of Common Pleas Opinion ………. 1

B Pennsylvania Commonwealth Court Opinions ……… 61

C Pennsylvania Supreme Court Order …………………. 93

D Pennsylvania Intervenors’ Brief ………….………….. 94

E Sklaroff v. Philip Morris, Inc
Complaint and Preliminary Objections (Excerpts) … 120

F Sklaroff v. Fisher
Complaint, Key Preliminary Objections, Response .. 139

TABLE OF AUTHORITIES

CASES

Allegheny General Hospital, et al v. Philip Morris, Inc.,
et al. Court of Common Pleas of Allegheny County
Civil Division GD No. 98-018956 (1998) ………....……. 22

Application of Medical Service Association of
Pennsylvania d/b/a Pennsylvania Blue Shield et al.
Docket No. MS96-04-098 ………..……………………… 18

Biester, 487 Pa. at 443, 409 A.2d at 851 (1979) ...…….. 15, 18

Biester, 409 A.2d at 851 n.5 ..…………………………….. 19

Blue Cross/Blue Shield of New Jersey, Inc. et al.
v. Philip Morris, Inc. et al.
Civil Action # 98-3287
US District Court for the Eastern District of New York …. 23

Buchanan v. Century Fed. Sav. & Loan Ass’n
259 Pa.Super. 37, 393 A.2d 704, 709 (1978) ..……………. 25

Building Industry Ass’n v. Manheim Township
710 A.2d 141 Pa.Cmwlth. 1998) ..………………………... 19

Commonwealth of Pennsylvania v. Philip Morris, Inc.
No. 2443 (Philadelphia County Ct. C.P. April 23, 1997) … 5

Consumer Party of PA v. Commonwealth of PA
507 A.2d 323 (Pa. 1986)…………………………………... 19

Daniels et al v. Philip Morris, et al
SDSC Case No. 719446 (4/3/2000) ……………………... 19

In re: General Motors Corporation Pick-Up Truck
Fuel Tank Products Liability Litigation
65 Fed 3rd 768 …………………………………….……… 14

Georgine et al v. Amchem Products, Inc. et al
83 Fed 3rd 610 ……………………….…………………… 14

Girsh v. Jepson
521 F2d 153 3rd Cir. 1975…………………………………. 25

Jefferson Bank v. Newton Associates
686 A.2d. 834 (Pa. Superior Ct. 1966)…………………… 19

Jones v. Muir
511 Pa. 535 A.2d 855 (1986)…………………………….. 19

Keener v. Zoning Hearing Board of Millcreek Township
714 A.2d 1120 (Pa. Cmwlth. 1998) ……………………... 16

Ken R. v. Arthur Z.
546 Pa. 49, 682 A.2d 1267 (1966)……… ………………. 19

League of Women Voters of PA et al v. Cmwlth. of PA et al.
692 A.2d 263 (Pa.Cmwlth. 1997)………………………….. 19

Mangini v. R.J. Reynolds Tobacco Company, et al.
875 P 2d 73 (Cal. 1994)………………………………….. 22

McNamara, et al.
Court of Common Pleas of Montgomery County
No 98-13501 [removed to federal court]…………………. 22

Philadelphia County Medical Society, et al. v. PA Ins. Dept.
No. 3309, C.D. (Pa.Cmwlth. 1996)………………………. 18

Prince George Center, Inc. v. U.S. Gypsum Co.
704 A.2d 141 (Pa.Super. 1997)……………………………. 25
Reverend Jesse Brown, et al. v. Philip Morris, Inc., et al.
U.S. District Court for the Eastern District of PA
Civil Action No. 98-5518………………………………… 22

Rizzo v. City of Philadelphia
528 A.2d 1128 (Pa.Cmwlth. 1990)………………………… 19

Society Created to Reduce Urban Blight (SCRUB) et al. v.
Zoning Board of Adjustment of the City of Philadelphia
et al. (Opinion Filed April 5, 1999)………………….……. 19

Skipworth by Williams v. Lead Industries, Inc.
547 Pa. 224, 690 A.2d 169 (1997) ………………………. 17

Sklaroff v. Fisher
No. 720 M.D. 1999 (PA Commonwealth Court) …………. 15

Sklaroff v. Philip Morris Incorporated
No. 2101 (Philadelphia County Ct.C.P. May 17, 1997) ….. 15

Sprague v. Casey
550 A.2d 184 (Pa. 1988)………………………..…………. 19

Sweeney, et al. v. American Tobacco Company, et al.
Court of Common Pleas of Allegheny County
No. 98-16226……………………………………………... 22

Tomaskevitch v. Specialty Records Corporation
717 A.2d 30 (Pa. Cmwlth. 1998) ………………………... 17

Van Dine v. Gyoriska
522 Pa. 122, 713 A.2d 1104 (Pa. 1998) …………………. 16

In re: Washington Public Power Supply System Sec. Litig.
720 F.Supp. 1379, 1387 (D.Ariz. 1989) aff’d
Plaintiffs v. City of Seattle 955 F.2d 1268
(9th Cir. 1992, cert. Denied, 506 U.S. 953)……………….. 24
Watrel v. Commonwealth, Dept. of Education
518 A.2d 1158 Pa. 1986…………………………………… 25

Wilson v. State Farm Mutual Automobile Ins. Company
512 Pa. 486, 517 A.2d 944, 947 (1986) …………………. 16

Wojdak v. Greater Philadelphia Cablevision, Inc.
550 Pa. 474, 707 A.2d 214 (1998) ………………………. 17

RULES OF CIVIL PROCEDURE

Pa.R.C.P. 1702 ……………………………………………. 14
Pa.R.C.P. 1714(a) ………………………………………….. 5
Pa.R.C.P. 2039, 2064 …..…………………………………... 5
Pa.R.C.P. 2327(4) …………….……………………… 12, 13
Pa.R.C.P. 2328 …………………………………………... 12
Pa.R.C.P. 2329(3) ………..……………………………… 25

STATUTES

28 U.S.C. 1257 (a) ………..………………………………... 1
28 U.S.C. 1257 (b) …………..…………………………….. 1
71 Pa.C.S. 732-201 ……………..………………………… 27
71 Pa.C.S. 732-204 ………………..……………...………. 24
71 Pa.C.S. 732-204 (c) ………………..………………….. 27
73 Pa.C.S. 201-204 …………………..………………. 19, 24
73 Pa.C.S. 201-208 …………………..…………………… 24
73 Pa.C.S. 201 et seq. ……………..…………………….. 27
B & P § 17200 et seq. (California) ……………………… 19

CONSTITUTIONS

United States
1st, 5th and 14th Amendments ..……………………… 1, 23

Commonwealth of Pennsylvania
Article I (Sections 1, 20 & 25) ……..………………… 2, 23
Article IV ……………………………………………….. 26

New York State
Article V ..……………………………………………….. 27

ADDITIONAL CITATIONS

H. Newberg
Newberg on Class Actions
5610b (1977) ……………………….…………………….. 25

H. Newberg
Newberg on Class Actions
Section 11.40 (1985) ……………………………………… 25

PETITION FOR A WRIT OF CERTIORARI

Petitioner Robert B. Sklaroff, MD, respectfully petitions for a Writ of Certiorari to review the judgment of the Pennsylvania Supreme Court in this case.

OPINIONS BELOW

The opinion and order of the Court of Common Pleas (First Judicial District of Pennsylvania) was issued on February 26, 1999 [Appendix A]. The opinion and order of the Commonwealth Court of Pennsylvania was issued on August 10, 1999 [Appendix B]. The Pennsylvania Supreme Court order was issued on December 17, 1999 [Appendix C].

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C. 1257 (a). “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari . . .where any title, right privilege, or immunity is specially set up or claimed under the Constitution. . . .”

The Pennsylvania Supreme Court docketed its final order on December 20, 1999. This writ was filed in a timely fashion, pursuant to 28 U.S.C. 2101 (b), and it is refiled within 60 days thereafter, pursuant to the order of the Clerk on April 5, 2000 (citing numerous Rules of this Court).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Three Constitutional Amendments are cited: I [“Congress shall make no law. . .abridging . . .the right of the people. . .to petition the government for a redress of grievances.”]; V [“No person shall. . .be deprived of life, liberty, or property, without due process of law. . . .]; XIV [“No state shall. . .deprive any person of. . .due process.”].

Two CoP Constitutional concerns are cited [Articles I (sections 1, 20 and 25) and IV], plus state-level statutes.

The pivotal concern herein is that the very reason the original suit was filed has been abrogated in its settlement, and asserting standing through this mechanism—parens patriae—comports with the facts and the law of this case. The Master Settlement Agreement threatens the ability of youth to preserve their present and future rights as a “class.” Dr. Sklaroff has a 9-3/4 year old son whom he would not want to start smoking cigarettes; Dr. Sklaroff wants to ensure the Tobacco Industry does not violate the Master Settlement Agreement, despite its limitations and vagaries.

STATEMENT OF THE CASE

The Master Settlement Agreement [“MSA”] reached by the Tobacco Industry [“TI”] was the largest civil litigation settlement in world history. In the Commonwealth of Pennsylvania [“CoP”], it was signed by the Attorney General [“AG”] who had a major role in its negotiation nationally. Two pending CoP cases [one in Superior Court and one in Commonwealth Court], however, illustrate that the AG has invoked prosecutorial discretion to avoid prosecuting alleged MSA violations by a TI member, Philip Morris Incorporated [“PM”]. Conduct exhibited during the past year has shown its obvious defects will protect the TI against prosecution for current and future behavior until/unless the deficient clauses therein have been amended or expunged, the goal of this suit.

This is an issue of great legal and public significance: can an agreement between an industry and government immunize that industry from any public interest lawsuit filed by any member of the public, even one intended to ensure the agreement is honored? Because the MSA was subject to judicial review and it will be subject to judicial oversight, it has been misportrayed merely as a contract; it must be subject to clarification by the AG prospectively—consistent with the AG’s statements—through issuance of a stipulation.

The Commonwealth Court’s minority opinion articulates the profundity of this error of law in the instant case, providing the foundation for this writ. Judge Kelley traced the origins of parens patria litigation, and he noted that the rights of youth had not been discerned by the trial court. Inasmuch as the MSA abrogates them, he concluded that blind approval of the MSA was a manifest error of law. Indeed, fundamental rights of unrepresented parties must be given greater weight than that of the settling parties.

No cogent rationale has been issued by any lower court for denying the petitioner standing in light of his multiple claims thereupon. Subsequent events demonstrate his legally enforceable interests regarding the MSA approval process. Because multiple legal challenges in state and federal courts pend currently against the MSA (such as that in Missouri), this Court should review decisions by the CoP (and other) state courts that involve inter alia issues of federal law.

This litigation represents the only and last challenge to the non-severable clauses in the MSA, arising in state courts and totally dissociated from any monetary claims (that characterize other lawsuits). Nevertheless, its filing does not eschew assessment of the MSA’s profound fiscal impact, an issue that is fleshed-out more thoroughly by Judge Kelley.

I. Introduction

The MSA is an extraordinary pact, purporting to settle all the CoP’s claims against the TI in exchange for its payment of, perhaps, billions of dollars and for its more responsible conduct. It is a Trojan Horse that is fundamentally flawed, for it contains two key provisions rendering it unlawful and its benefits uncertain: the AG improperly waives rights and claims, and the TI gains an Offset Clause that is ultra vires, unconstitutional and against public policy. It is perceivable as collusion between Big Tobacco and Big Government, inasmuch as removes the major mechanism by which the public health can be maintained: the threat of litigation.

Releases are to be provided by parties that were not named as parties in the Complaint; further, undefined present and future claims (by the CoP and others) are to be waived, making the MSA’s benefits contingent and illusory. Instead of repairing these errors and ensuring the MSA was fair, adequate and reasonable, the Trial Court mistakenly denied Dr. Sklaroff standing, committing an abuse of discretion. Thus, this Court must remand, so as to allow Dr. Sklaroff to clarify the legality and scope of waiver and offset language; in the alternative, this Court must examine the MSA de novo and declare the subject provisions unlawful.

The remand is justified for many reasons. Dr. Sklaroff merits standing because he is a citizen, taxpayer, father, activist, physician, and litigant. He has pending litigation against PM, filed (as was the initial litigation) parens patriae (inter alia, to decrease the risk that his 9-3/4 year old son will become attracted to cigarettes). This case also perfectly fits the “Biester” Exception, a statute that was intended to empower citizen-taxpayers against governmental abuse of power. Indeed, no state court (primary or appellate) has yet addressed these criteria (individually or collectively), admittedly due to the “historic” nature of the MSA and its great fiscal implications. Yet, regardless of publicly-stated posturing intended to improve its image, the TI continues to commit crimes worldwide (e.g., smuggling by B.A.T. in Great Britain and Philip Morris in Canada); it cannot be rendered immune from suits, regardless of one’s perceptions of individual responsibility and multi-national corporations.

Dr. Sklaroff, functioning per se, submits argument to this Court that is necessarily incomplete. Nevertheless, he fears fundamental concepts threaten to escape judicial study. These profound concerns, individually and in the aggregate, create precedent that could then become the foundation for efforts of other entities to gain blanket indemnification for future conduct that, in turn, could trivialize the generally recognized capacity of people to petition their government and private entities for redress. They must not be avoided.

II. Procedural History

The AG initiated this action by filing a Complaint against the TI on April 23, 1997 seeking inter alia reimbursement for the CoP’s tobacco-related Medicaid expenditures [1]. The action was brought as parens patriae (“on behalf of all its citizens”), but it did not include—or identify as parties—persons or entities functioning as municipalities & other local government units, private attorneys general, qui tam plaintiffs or taxpayers [2]. A national settlement was made public on November 16, 1998, and the CoP & TI submitted it to the Court requesting its approval in the form of a consent decree on November 23. [3] Dr. Sklaroff filed his Intervention Petition pro se on November 18 (joined by two individuals and two public interest organizations) for declaratory and injunctive relief. [The concerns were the Release and Waiver Clauses, plus the Indemnification and Offset Provisions.] A Revised Petition was filed on December 2 [Appendix D, which includes the Brief], joined by eleven additional organizations acting “on behalf of themselves and others similarly situated.” [4] After Hearings (January 8 & 12, 1999), an Order was issued (January 13) entering a Consent Decree approving the MSA and denying the petitions to intervene.

As requested by the Settling Parties, the anti-tobacco activists—including Dr. Sklaroff—were denied standing. An appeal to Commonwealth Court was filed by Dr. Sklaroff (plus the two co-petitioners and four of the thirteen organizations) and Allegheny County. [5] Judge Herron issued his 59-page Opinion on February 26 [Appendix A]. Appeals to the Commonwealth [Appendix B] and the Supreme Courts [Appendix C] were denied, the latter without comment.

III. The Master Settlement Agreement

The Master Settlement Agreement [6] [“MSA”] was announced at a press conference led, in part, by the AG [7]. The national and statewide campaigns to achieve approval [8] led to the release of escrowed funds; the CoP received its first payment on December 31, 1999. The only impediment to approval outside the CoP was state-county conflict regarding division of the monies [9]; most have been resolved.

Its non-severable clauses [10] did not allow for citation of state statute to repair fundamental ambiguity of such vague phraseology; no precedent or procedural guideposts were cited to facilitate rudimentary interpretation thereof.

a. Releasing Parties and Released Claims

The MSA waived and released claims on behalf of these “Releasing Parties”: the CoP (plus its agents, officials, repre-sentatives, agencies, departments, commissions, divisions and subdivisions) and “persons or entities acting in a parens patriae, sovereign, quasi-sovereign, private attorney general, qui tam, taxpayer or any other capacity.” [“II (pp)”] [11]

Releasing Parties were included:
(A) to the extent that any such person or entity sought relief on behalf of or generally applicable to the general public in such Settling State or the people of the State, as opposed solely to private or indi-vidual relief for separate and distinct injuries, or
(B) to the extent that any such entity (as opposed to an individual) sought recovery of health-care costs (other than premium or capitation payments for the benefit of present or retired state employees).

Released Claims gave an unprecedented blanket-release, encompassing all torts filed [“II (nn)”] for claims arising from conduct, acts or omissions, directly or indirectly:
(1) in the past “(including any damages incurred in the future arising from such past conduct, acts or omissions), those Claims. . . based on, arising out of or in any way related, in whole or in part, to (A) the use, sale, distribution, manufacture, deve-lopment, advertising, marketing or health effects of, (B) the exposure to, or (C) research, state-ments, or warnings regarding, Tobacco Products.”
(2) in the future “only those monetary Claims. . . based on, arising out of or in any way related to, in whole or in part, the use of or exposure to Tobacco Products manufactured in the ordinary course of business. . . .”

The MSA did not define “non-business” business.

b. Offset

The “Settling States’ Release, Discharge and Covenant” [“XII (b)”] granted this “litigating releasing parties offset”:
If a releasing party (or any person or entity enu-merated in subsection II (pp), without regard to the power of the Attorney General to release claims of such person or entity) nonetheless attempts to main-tain a Released Claim against a released party, such released party shall give written notice of such poten-tial claim to the attorney general of the applicable Settling State within thirty days of receiving notice of such potential claim. . . .The released party may offer the release and covenant as a complete defense.
If it is determined at any point in such action that the release of such claim is unenforceable or invalid for any reason (including, but not limited to, lack of authority to release such claim), . . .
(1) the released party shall take all ordinary and reasonable measures to defend the action fully. The released party may settle or enter into a stipulated judgment with respect to the action at any time in its sole discretion, but in such event, the offset described in subsection (b)(2) or (b)(3) below shall apply only if the released party obtains the relevant Attorney General’s consent to such settlement or stipulated judgment, which consent shall not be unreasonably withheld. . . .
(2) . . . .A. In the event of a settlement or stipulated judgment, [it] shall give rise to a continuing offset as such amount is actually paid against the full amount of such original participating manufacturers’ share. . .of the applicable Settling State’s Allocated Payment until such time as the settled or stipulated amount is fully credited on a dollar-for-dollar basis.” [emphasis added]

c. Scope

The MSA was to be effectuated “to the full extent of the power of the signatories to release past, present, and future claims.” Thus, “Releasing Parties” did not include parties to the extent the AG lacked power to release their claims [12].

Nevertheless, enforcement power was centralized by the “Intended Beneficiaries” clauses [XVIII (p)], blocking non-governmental plaintiffs from obtaining injunctive relief [13].

IV. Dr. Sklaroff and The Coalition for a Tobacco Free Pennsylvania

The Coalition for a Tobacco Free Pennsylvania has been, for two decades, the CoP’s only statewide democratically-governed organization of anti-tobacco activists. Its work is submitted annually to the Centers for Disease Control and Prevention [“CDC”] by the CoP Health Department in conjunction with mandated reportorial responsibilities.

The AG announced formal filing of the litigation against the TI while standing alongside the Coalition President. The Coalition was unable, however, to provide consultation during or achieve an impact upon any settlement discussions.

Coalition members noted with dismay that the MSA’s above-detailed releases and offset did not appear in the agreements effectuated in the first four settling states (Mississippi, Florida, Texas & Minnesota). The Coalition and certain members thereof—plus the Coalition President and Vice President—ultimately filed for Intervenor Status. As a direct result, some key members resigned therefrom.

Dr. Sklaroff has served twice as the Coalition Secretary. Its efforts regarding this issue [14] were consistent with policies of the Pennsylvania [“PA”] Society of Internal Medicine, as implemented by Dr. Sklaroff (its immediate-past President).

Thus, although Dr. Sklaroff has acted alone during the past year, his goals are consistent with Coalition policies.

V. Dr. Sklaroff’s Challenge in Pennsylvania

Dr. Sklaroff and the other activists sought Intervenor status “to prevent a wholesale denial of due process to any and all [such as themselves] who might bring public interest litigation.” They viewed this as their only opportunity to challenge egregious sections of the MSA [15].

They condemned slight-of-hand releases that effectively immunized the TI from legal liability. The mere existence of the Offset would prompt the CoP to intervene in defense of the TI because: (i) in the event of petitioner’s success, the litigating releasing parties offset provisions would divert allocated payments from the CoP to the petitioner; (ii) the CoP plaintiffs would therefore have a financial interest in tobacco defendants’ prevailing against the petitioner, which interest would be directly adverse to the petitioner’s interest; and (iii) the CoP plaintiffs’ intervention in petitioner’s litigation would proceed without objection from the TI.

The Settling Parties’ proposed statements of fact were not disputed; instead, characterizations therein were rejected. Appended to their brief were detailed descriptions of cases that have been brought both in the CoP and elsewhere which, if filed after approval of the MSA, would be subject to dismissal (n.b., “release” or “intended beneficiaries” clauses) or which, if successful, would recover not from the TI defendants but from the CoP’s allocated funds (n.b., offset).

The Prayer for Relief sought approval of the MSA to be contingent upon severing all these concerns regarding rights of the Activists from any and all provisions of the MSA. Instead of trying to block implementation of the MSA, the intent was primarily to stop the CoP from mandating Activists forfeit their civil rights at the TI’s insistence.

VI. The Trial Court Hearings and Opinion

During the Hearings, the Settling Parties opposed intervention and asked the Court to approve the MSA. They lauded both its unprecedented fiscal dimensions and its potential sociological impact. Meanwhile, Dr. Sklaroff introduced evidence demonstrating his interest in this case, including his extensive history of action against the TI as a citizen and taxpayer of the CoP. He also pointed out to the Court the problems with the scope and operation of the Release and Offset language; absent standing, however, he noted inability to address all other constitutional problems.

The Settling Parties didn’t dispute his interpretation of the MSA. The AG averred he lacked power to release the claims of taxpayers and private attorneys general, and he agreed Dr. Sklaroff had brought his petition in good faith. Unlike the AG, the TI did not state its position, intent or understandings regarding the Release and Offset clauses. Neither Settling Party offered any explanation or estimate as to the value of the released claims (past, present or future), the quid pro quo for dealing with a TI mired in litigation.

More than a year hence, these issues remain unresolved.

More than a year hence, other issues remain unclear [16].

The Opinion noted the MSA’s terms were complex “with distinct qualifiers and limitations.” It never analyzed its fairness, reasonableness and adequacy. The Opinion concluded the Petitioners—including Dr. Sklaroff—lacked a Legally Enforceable Interest [“LEI”] that would empower them to question the Release & Offset [17]. Yet, it didn’t cite (let alone discuss) the Appendix to the Petitioners’ brief, which listed a multitude of examples of such cases.

On the one hand, it recognized “this court is not concerned with any technical defects in the activists’. . . petition (such as its failure to attach a pleading as required by Pa.R.C.P. 2328).” On the other hand, the existence of this “curable technicality” yielded the view that, absent a filing, the petitioners lacked a LEI and, thus, lacking standing.

The Petitioners had cited their concerns with sufficient precision to convey what would be subject to future lawsuits. This was deemed apt because the word “may” (a qualifier) and not the word “must” was the operational term [Pa.R.C.P. 2327(4): “the determination of such action may affect any LEI of such person, whether or not he may be bound by a judgment in the action”]. This was felt to reflect the need to protect rights that could be invoked for the MSA’s lifetime.

The Opinion noted the CoP had asserted it did not wish to interfere with the Petitioners’ rights, but it also found “discussion of their substantive constitutional rights would be an advisory opinion [18] without legal effect.” It ignored the Petitioners’ warning that the TI could take advantage of the inhibitory impact of this uncertainty on “disarmed” activists.

It cited PA Supreme Court precedent that concluded that “the exact boundaries of the LEI limitation [of Pa.R.C.P. 2327(4)] are not clear. . .[and its application in a particular case] “calls for the careful exercise of discretion and a consideration of all the circumstances involved.” These asserted interests were to be analyzed “within the context of applicable rule and precedent”; this self-imposed task, however, was inexplicably abandoned thereafter, and the presumed absence of a LEI was deemed fatal to the petition.

Thus, responsibility for interpreting the MSA was punted elsewhere [“at another court, at another time”]. This posture afforded the Opinion a “NIMBY” [“Not In My Back Yard”] quality that recurred when Judge Herron refused to address an alleged violation of the MSA by the TI [vide infra], precisely the LEI he had previously deemed indispensable.

“The effect of the MSA release provisions—if any—cannot be determined except in the context of that future proceeding. At that point, they would have ample oppor-tunity to demonstrate why the release provisions do not apply.” It failed to note that the MSA contains no provision establishing procedures for any such intervention.

Ultimately, it cited the need to balance protection of individual rights against avoiding unnecessary restraint upon the AG in performing legitimate duties; the gravaman was felt to be whether “the alleged harm is at best conjectural.”

The Opinion noted that, “it is thus not entirely clear whether the Activists object to the offset provisions as a denial of their constitutional right of access to the courts or if they assert it is objectionable as ‘bad policy.’ ” [19]

This was viewed as inherently political and the recourse advised for disputes regarding policy—not law—was, presumably, inter alia to work against the AG’s reelection.

Finally, the Opinion eschewed any consideration of certi-fying a class [Pa.R.C.P. 1702] due to inherent potential to delay the proceedings [footnote #42]. Haste was preferable, even if precedents such as the following were to be ignored.

In 1995, class action litigation was viewed broadly when a district court was forced to make Rule 23 rulings [In re: General Motors Corporation Pick-Up Truck Fuel Tank Products Liability Litigation. 65 Fed 3rd 768]. And in 1996, “inclusion of future claims” was felt to raise serious fairness concerns regarding claims for asbestos-related personal injury or wrongful death.” Georgine et al v. Amchem Products, Inc. et al., 83 Fed 3rd 610. Just as in the MSA, this settlement didn’t afford victims any delayed opt-out rights.

The AG has mischaracterized this serious legal challenge as a trivial assertion of non-existent rights intended to block a comprehensive settlement benefiting the public health [20]. He has turned his sword against those he had sworn to protect [21]. The other activists withdrew, despite the facts that these MSA monies were not yet available, that the appeal filed by Allegheny County was pending, and that the TI has donated $50 million for legal costs that totaled ~$10 million. He pledged to enforce, the TI promised to obey; neither has.

VII. Philip Morris Financing of Wawa Billboard Ads

In April, 1999, Wawa Food Markets initiated a billboard advertising campaign financed by PM, a “manufacturer sponsored promotion.” A public outcry prompted the AG to exert pressure on Wawa; the billboards were then removed.

Dr. Sklaroff filed litigation intended to fine PM for this MSA violation and to enjoin PM from recidivism, but PM claimed immunity under the MSA. Sklaroff v. PM. [Appendix E]. The billboards returned in December, and another retailer (Sheetz) emulated this act in Western Pennsylvania. Dr. Sklaroff filed litigation intended to force the AG to enforce the MSA, but the AG claimed Dr. Sklaroff had no standing to do so. Sklaroff v. Fisher. [Appendix F].

Thus, a dangerous precedent has been established and validated in the CoP; a member of the TI can violate the MSA’s “Third Parties” clause and escape enforcement. Yet, although this scenario was predicted and occurred, the lower court refused to allow the record to be supplemented (during reconsideration) with data documenting this conduct. For now, the TI is confident the AG will not enforce the MSA, even as the public blindly assumes otherwise.

ARGUMENT SUMMARY & REVIEW STANDARDS

It is an abuse of discretion to deny Dr. Sklaroff standing and to refuse to analyze and weigh the merits of the MSA [23]. Dr. Sklaroff has standing as a Taxpayer according to the Biester guidelines [487 Pa. at 443, 409 A.2d at 851 (1979)] and due to his direct, substantial and immediate interest in the outcome of the MSA approval process; his standing is both personal and professional, mutually exclusive from the AG’s.

The Court is obligated to examine, consider and study the MSA, including the terms of Release and the impact of the Offset. According to court rules, such analysis is unambiguously required for settlements of class actions and claims for minors, incompetents and incapacitants.

Had the Court performed its duty, it would have found the Release and Offset clauses were improper and unlawful. The Release purports to waive claims that cannot be waived, and the Offset gives away what the AG has no authority to relinquish. It would also have found that the MSA improperly limits the fundamental capacity of citizens to seek injunctive relief. This matter is currently “ripe,” and Dr. Sklaroff has Legally Enforceable Interests therein, amply manifest in two CoP courts (Commonwealth & Superior).

The AG must stipulate what he has admitted; he has denied he can indemnify, and he has averred he would limit the ability to invoke the offset provision indiscriminately. The essential remedy is remand to the Trial Court to establish that Dr. Sklaroff and other Petitioners have LEI’s, thereby affording an opportunity to acquire the necessary declaratory relief. In the alternative, this Court could itself act in its primary jurisdiction to declare the release and offset clauses ultra vires, stricken, or satisfactorily modified. The chance to study its “fairness, reasonableness and adequacy” will never again arise, either in the CoP or nationally.

The question of intervention is a matter within the sound discretion of the trial court and, unless there is a manifest abuse of such discretion or an error of law was committed, its exercise will not be interfered with on review. Keener v. Zoning Hearing Board of Millcreek Township, 714 A.2d 1120 (Pa. Cmwlth. 1998) See also, Wilson v. State Farm Mutual Automobile Insurance Company, 512 Pa. 486, 517 A.2d 944, 947 (1986). Discretion is abused if, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable or is the result of partiality, prejudice, bias, or ill will. Van Dine v. Gyoriska, 522 Pa. 122, 713 A.2d 1104 (Pa. 1998).

The scope of review of a question of law is plenary. Wojdak v. Greater Philadelphia Cablevision, Inc., 550 Pa. 474, 707 A.2d 214 (1998); Tomaskevitch v. Specialty Records Corporation, 717 A.2d 30 (Pa. Cmwlth. 1998). When the issues on appeal present questions of law, the court’s scope of review is plenary. Skipworth by Williams v. Lead Industries, Inc., 547 Pa. 224, 690 A.2d 169 (1997).

Dr. Sklaroff must be granted standing because he is a taxpayer and because has legal and equity interests justifying intervention (i.e., that are substantial, direct and immediate). He has an interest in the outcome of the suit that surpasses the common interest of all citizens in procuring obedience to the law, but which is asserted in the present/future public interest.

I. The petitioner—functioning as a citizen, taxpayer, father, activist, physician, private AG and litigant—should not be deprived of standing to intervene prior to final approval of the Master Settlement Agreement between the Tobacco Industry and the Commonwealth of Pennsylvania, under state and federal law, based upon his current and future civil and due-process constitutional rights.

Both the judicial and executive branches of CoP government have concluded Dr. Sklaroff merited standing based upon facts and averments identical to those herein. Commonwealth Court granted Dr. Sklaroff standing (with the organization he served as President, the PA Society of Internal Medicine)—pursuant to efforts to reverse merger of PA Blue Shield and Blue Cross of Western PA [24]—because he was elected (by his peers) to be a Corporate Member of Blue Shield and was a provider (and insured) thereof [25]. These facts indisputably elevated him over the “public.”

They proved he had a “direct” interest in the outcome of this matter. Philadelphia County Medical Society, et al. v. Pennsylvania Insurance Department. No. 3309, C.D. (Pa.Cmwlth. 1996). This view was sustained by the CoP Insurance Department, pursuant to an Order issued on January 14, 1999 [25]. Application of Medical Service Association of Pennsylvania d/b/a Pennsylvania Blue Shield et al. Docket No. MS96-04-098. It remains operational.

The CoP recognized the expertise & experience afforded by the activists throughout the City Hall proceedings, in the courtroom and outside in the corridor; the AG “needs” them.

Thus, the activists merit being granted full standing to address the MSA at this time, just as the PSIM was granted full standing to address the Blues consolidation. Dr. Sklaroff cannot exert the interests of all activists; rather, he anticipates remand would trigger a process comparable to that which occurred with regard to the Blues: the lower court would issue a public invitation to other putative intervenors.

a. Dr. Sklaroff has the capacity to seek relief on behalf of and/or generally applicable to the general public by filing a taxpayer lawsuit.

Dr. Sklaroff also warrants standing under the Biester taxpayer exception. Under this exception, the taxpayer must show: (1) the governmental action would otherwise go unchallenged; (2) those directly and immediately affected by the complained-of expenditures beneficially affected and not inclined to challenge the action; (3) judicial relief is appropriate; (4) redress through other channels is unavailable; and (5) no existence of other persons better situated to assert the claim. Biester, 487 Pa. at 443, 409 A.2d at 851 (1979).

The relevant public policy ensures taxpayers are able to seek judicial oversight. [Biester, 409 A.2d at 851 n.5.]

Commonwealth Court granted standing to “taxpayers or organizations that represent Philadelphia taxpayers” at zoning hearings who wish to discuss billboards. Society Created to Reduce Urban Blight (SCRUB) et al. v. Zoning Board of Adjustment of the City of Philadelphia et al. (4/5/99). The pending issue involved more than a government contract, just as is the case with a court-approved lawsuit settlement; thus, the settling parties can’t finesse dealing with intervenors.
Unaddressed but recognized were two additional reasons for granting standing: “zone of interest” and “private AG.” The former cited Ken R. v. Arthur Z., 546 Pa. 49, 682 A.2d 1267 (1966) & Jefferson Bank v. Newton Associates, 686 A.2d. 834 (Pa. Superior Ct. 1966).

Regarding the Private Attorney General issue, Jones v. Muir, 511 Pa. 535 A.2d 855 (1986) was cited. This party was defined as one “who may not carry a direct, substantial or immediate interest in the subject matter of the litigation, [but who] may be conferred with standing because he shares a common interest with citizens or taxpayers in general.”

A recent (4/3/2000) ruling in San Diego, California [26] noted that standing as a private-AG was readily and fully available under the “Business and Professions Code.” Daniels et al v. Philip Morris, et al, [SDSC Case # 719446].

Biester has been broadly applied. Consumer Party of Penn-sylvania v. Com. of Pennsylvania, 507 A.2d 323 (Pa. 1986); Sprague v. Casey, 550 A.2d 184 (Pa. 1988); Rizzo v. City of Philadelphia, 528 A.2d 1128 (Pa.Cmwlth. 1990); League of Women Voters of PA et al v. Commonwealth of PA et al. 692 A.2d 263 (Pa.Cmwlth. 1997); Building Industry Ass’n v. Manheim Township. 710 A.2d 141 (Pa.Cmwlth. 1998).

Dr. Sklaroff meets the five-prong Biester exception, noting demonstrated ability to utilize all available resources to accomplish profoundly important goals and objectives.

The first prong has been borne out by the chronology of events; public health facets of the CoP’s settlement of this lawsuit with the TI would have gone unchallenged but for Dr. Sklaroff’s challenge. Dr. Sklaroff inter alia wrote and filed this suit; recruited endorsements from two organized medicine entities [27]; and strained long-term personal relation-ships as he continues to pursue this public-interest Appeal.

As to the Second prong, those directly, immediately and substantially affected by the settlement thereof (the CoP and the TI) are beneficially affected and aren’t inclined to challenge the agreement or police future behavior. To the contrary, the Settling Parties seek approval of the MSA that will thereby curtail the CoP’s monitoring. Certainly, the TI lacks a record of trust over the decades (n.b., publication of embarrassing scientific “data”) and years (n.b., publication of damning internal memos); rogue corporations do not abandon patterns of misconduct, thus requiring vigorous regulation [28].

Legislatively, the CoP has earned a poor grade in the annual state-by-state assessment issued by the CDC, exemplified by its failure in 1996 to implement a state-wide Youth Access Program (despite lobbying from the Coalition).

Administratively, the CoP Health Department has much unfinished business, such as issuance of formal regulations implementing the 1988 Clean Indoor Air Act and release of a half-decade remote Youth Survey (encompassing knowledge, attitudes and behavior). Presently, attention has been shifted (by the public health community, legislature and Governor) towards how tobacco settlement monies should optimally be spent; although Dr. Sklaroff has provided testimony in that regard, only he pursues the ongoing concern with repair of fundamental defects in the MSA that others (who may privately acknowledge his veracity) have abandoned.

As to the third prong, judicial relief is appropriate, inasmuch as the dispute between the CoP and the TI was pending in court and, further, that the Settling Parties submitted the MSA to the court for its formal approval. Thus, the Trial Court must assess prospectively the propriety of the document it will administer thereafter [29].

As to the fourth prong, no procedure is now available to Dr. Sklaroff through which he might directly challenge implementation of the MSA. Even were he to win his other two cases, the MSA’s onerous clauses would not be disturbed.

As to the fifth prong, no other persons/entities are better situated to assert this claim. Dr. Sklaroff is a medical oncologist, treating tobacco-diseases on a daily basis; he has devoted his professional life towards anti-tobacco pursuits [30].

Thus, Dr. Sklaroff meets the five-prong Biester test, and he has LEI’s that afford him the right to intervene. He satisfies these criteria in ways identical to those previously sustained as having justified being granted party status. He wants only what exists in the first four settling states: Pennsylvanians should now be empowered to improve problematic clauses in the MSA, and the only way they will be able to do so will be by pursuing the instant litigation through the courts. He has standing because, otherwise, neither government nor activists will be able to ensure the TI obeys the law (generally) and the MSA (specifically) [31].

b. In addition to his Wawa cases against PM and the CoP AG, Dr. Sklaroff can articulate two causes-of-action based upon tax-related implications of the MSA justifying a taxpayer suit.

These causes-of-action are as follows. One would block the Tobacco Industry from making settlement monies tax-deductible. The second would block the Tobacco Industry from invoking Section X [“Effect of Federal Tobacco-Related Legislation”] to invoke “a continuing dollar-for-dollar offset” against the annual payments by the TI to the state were Congress to increase excise taxes, as the MSA depicted in complicated legal language.

c. Dr. Sklaroff has the legal right to seek relief on behalf of and/or generally applicable to the general public by filing generic litigation.

The Petitioners’ Brief cited numerous causes of action—both in the CoP and throughout America—which could be and have been filed in the CoP against the TI. Dr. Sklaroff could serve as the plaintiff in these cases, all of which have passed muster as causes-of-action, or in a consultative role.

Cited are the following cases: Mangini v. R. J. Reynolds Tobacco Company, et al., 875 P 2d 73 (Cal. 1994); Allegheny General Hospital, et al v. Philip Morris, Inc., et al., Court of Common Pleas of Allegheny County, Civil Division GD No. 98-018956 (1998); Reverend Jesse Brown, et al. v. Philip Morris, Inc., et al., U.S. District Court for the Eastern District of PA, Civil Action No. 98-5518; Sweeney, et al. v. American Tobacco Company, et al., Court of Common Pleas of Allegheny County, No. 98-16226; McNamara, et al., Court of Common Pleas of Montgomery County No 98-13501 [removed to federal court]. Additional cases dealing, for example, with nicotine addiction and with antitrust matters might also prompt acquisition of input from a physician-activist whose work is distinct from the “public.”

d. Constitutional Concerns.

Blocking Dr. Sklaroff and the Activists from intervening denies them due process (under the 1st, 5th and 14th Amend-ments) and equal protection (under the 14th Amendment and the PA Constitution’s Declaration of Rights).

In the latter (Article I), for example, Section 1 deals with the Inherent Rights of Mankind, Section 20 deals with the Right of Petition, and Section 25 deals with Reservation of Powers in People. The class action and civil rights of many future putative litigants have been violated in this matter.

As anticipated, a federal court filing by PM on 3/31/99 raised the MSA as an affirmative (11th) defense for present and future actions. Blue Cross/Blue Shield of New Jersey, Inc. et al. v. Philip Morris, Inc. et al., Civil Action # 98-3287 US District Court for the Eastern District of New York. PM also invoked the MSA in its Preliminary Objections to the current filing against the Wawa Billboard Advertising.

II. The petitioner’s litigation against one member of the tobacco industry constitutes a legally enforceable interest, representing a case or controversy that continues to be ripe for adjudication and that reflects a direct, substantial and immediate interest in the Agreement sufficient to merit being conferred standing.

The litigation against PM for having financed the Wawa Billboard Advertisements was opposed by PM due inter alia to the MSA’s immunity clause. It was viewed, however, as moot by the Trial Court because the billboards had been removed. Although the ads reappeared prior to final adjudication of the case, the judge inexplicably refused to reconsider. Therefore, Wawa and PM have clearly not foresworn this conduct.

This observation is supported by two additional facts. First, Sheetz has pursued comparable behavior in Western Pennsylvania, despite the AG’s jawboning.

Indeed, the TI’s financing of billboard advertising is a national phenomenon, but the CoP AG has failed to attempt to enforce the MSA’s clear, multiple proscriptions thereupon, particularly as they relate to contractual obligations.

In addition, multiple additional violations of the MSA’s restrictions on youth advertising were reported to his office, raw information that would be easy to confirm and prosecute. This is also why the AG has been directly sued; he must be forced to fight the TI, even as he blocks others from doing so. Thus, the Wawa case is, has been, and will remain ripe.

One cannot depend on potential litigation to settle key MSA-related issues, letting controversies remain unresolved; for example, if the MSA waived all citizens’ rights to trial by jury or to retain counsel, the issue sui generis would be ripe.

The Court was required to weigh the merits of the MSA to ensure it was fair, reasonable and adequate. In re: Washington Public Power Supply System Sec. Litig., 720 F.Supp. 1379, 1387 (D.Ariz. 1989), aff’d Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992, cert. Denied, 506 U.S. 953.

Its failure to do so was a manifest abuse of discretion and error of law. The AG brought this action in his official and representative capacity “pursuant to his authority under 71 Pa.C.S. 732-204, 73 Pa.C.S. 201-204 and 73 Pa.C.S. 201-208 and in parens patriae on behalf of the citizens of Pennsylvania, including its children and adolescents, to protect their health and welfare, and to recover damages the Commonwealth and its citizens have sustained as a result of the unlawful and concerted action of the defendants, as well as injunctive relief.”

a. The Trial Court failed to analyze the MSA.

The court should conclude that the settlement secures an adequate advantage for the class in return for the surrender of litigation rights. As with valuation problems in general, there will usually be a difference of opinion as to the appropriate value of a settlement. For this reason, judges should analyze a settlement in terms of a “range of reasonableness.” H. Newberg, Newberg on Class Actions, 5610b (1977) [See also, Buchanan v. Century Fed. Sav. & Loan Ass’n, 259 Pa.Super. 37, 393 A.2d 704, 709 (1978); also see Prince George Center, Inc. v. U.S. Gypsum Co. 704 A.2d 141 (Pa.Super. 1997).]

In evaluating such settlements, CoP courts are required to consider many factors, even if intervenors don’t raise them:
(1) the risks of establishing liability and damages,
(2) the range of reasonableness of the settlement in light of the best possible recovery,
(3) the range of reasonableness of the settlement in light of all the attendant risks of litigation,
(4) the complexity, expense and likely duration of the litigation,
(5) the stage of the proceedings and the amount of discovery completed,
(6) the recommendation of competent counsel, and
(7) the reaction of the class to the settlement.
[Girsh v. Jepson, 521 F2d 153 3rd Cir. 1975).]

The Trial Court failed to consider any such criteria prior to approving the MSA, blindly (and erroneously) accepting the AG’s judgment [32]. “The courts and not the Attorneys General are the final arbiters of the legality of contracts.” Watrel v. Commonwealth, Dept. of Education, 518 A.2d 1158 Pa. 1986). One must “determine whether implementing a settlement is in the best interest of those whose claims will be extinguished.” Newberg on Class Actions, section 11.40 (1985).

Instead of analyzing the MSA, however, the courts honored the AG’s desire for speedy approval. Through exchanges of briefs during the past year, the AG failed to challenge this portrayal of Dr. Sklaroff’s perspective: “Sklaroff argued that the Attorney General does not have the authority to release all future claims by anti-tobacco activists.” Yet, the AG has refused to explain why he refused to offer a stipulation foreswearing his admitted inability to halt public-interest litigation [33].

b. II (pp) must be struck from the MSA.

The CoP Constitution states the AG “shall be the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law.” [Article IV] He is not empowered to preclude the filing and prosecution of lawsuits initiated by persons or entities acting in any capacity (e.g., parens patriae, sovereign, quasi-sovereign, private attorney general, qui tam, taxpayer) [34].

A. spokesperson for the AG told a reporter that this suit is moot because the MSA did not preclude the Coalition’s right to sue the TI. “Attorneys general can waive the rights of other parties in certain states, such as New York [35], [Press Secretary Sean] Connolly said, ‘But Pennsylvania law does not allow us to do that.’ ” This sentence could be stipulated.

c. XII (b) must be struck from the MSA.

The AG’s civil litigation powers (“. . .to collect by suit or otherwise all debts, taxes and accounts due the Commonwealth. . . .”) do not include the right to waive claims of unknown value. 71 Pa.C.S. 732-204 (c). Nevertheless, the Offset indemnifies the TI from all claims by taxpayers and “other persons,” even if the AG does not have authority to release those claims.

The AG is the CoP’s chief consumer law officer, responsible for enforcing the consumer laws and appointing & overseeing a consumer advocate. 71 Pa.C.S. 732-201. He has specific and unique enforcement obligations under the PA Unfair Trade Practices and Consumer Protection Law. 73 Pa.C.S. 201 et seq. The Offset, however, places the AG on the wrong side of the battlefield, inasmuch as the AG will now have an $11 billion “incentive” to oppose consumer actions against the TI, lest they result in judgments that will reduce the CoP’s annual income through the MSA. The Opinion, quoting the CoP, asserts: “The MSA did not require the AG to intervene on behalf of the TI ‘nor would he have any reason to do so.’ ” Indeed, the AG would be forced to honor the Offset, “which consent shall not be unreasonably withheld,” according to the MSA (vide supra); ignored is its obvious monetary incentive to support the TI.

The Offset Provision is complex, unprecedented, overly-broad, inherently vague, unprecedented, unconstitutional, inconsistent with public policy, and ultra vires, and it excessively empowers the AG.

The AG is not merely indemnifying the TI for claims filed by people/entities he controls. The AG is immunizing the TI for claims filed by people and taxpayers over whom he has no power. Thus, were awards to other persons to total $11.2 billion, the CoP would receive no money from the TI through the MSA. [It’s capitated!] Therefore, the offset creates an unholy alliance between the Settling Parties that is contrary to the AG’s statutory duties and responsibilities.

Illustrative of how the Offset is already determining the CoP’s conduct [36] is an observation of the governor’s Secretary of Administration on March 5, 1999, Mr. Tom Paese. He asserted Allegheny County should lobby for its “fair share” rather than pursue RICO litigation to attain it, adding: “A separate settlement for the county simply would be taken from the funds the state already is set to receive.”

PM has also tried to deduct a punitive damages award (based solely on an individual’s case, overtly excluded from the MSA) to Oregon from the annual allocated payment.

Invoking the Offset Provision is now documented, and it must be clarified—on behalf of the citizenry—through stipulating the MSA. This concern clearly is not speculative. The AG must stipulate what he avers publicly and in briefs.

As noted previously, the financial implications of the MSA were not addressed through the judicial process, and estimates as to the current economic risk faced by the TI (perhaps in the hundreds of billions of dollars) in the Engle case (in Florida) illustrate why this issue must be faced.

Commonwealth Court Judge Kelley dissented “with respect to the majority’s order discontinuing the above-captioned appeals” [the plural includes this case] because:

The record in this case is absolutely devoid of any evidence establishing the damages suffered by the Commonwealth through its agencies, departments, com-missions or divisions, and its 67 counties, and its various municipalities, cities, boroughs, townships, entities, instru-mentalities and educational institutions. Thus, from this record, there is absolutely no way to determine the adequacy or appropriateness of the proposed settlement in this case. In the absence of any evidence to support this determination, the trial court was absolutely precluded from possessing the sufficient necessary information to permit an intelligent decision prior to accepting and endorsing settlement in this case.

In conclusion, it is clear to me that a trial court may not place its judicial imprimatur on a proposed settlement and consent decrees, and order the entry of judgment thereon, where the record utterly fails to demonstrate that it is a just and fair resolution to the matter. This is particularly so where the proposed settlement and consent decrees are of such a broad expanse, so absolutely preclude future claims and liability, and may never be altered or amended in any manner by the court. To my mind, the entry of judgment based on such a speculative and conjectural predicate affecting such significant rights must surely constitute an error of law.

CONCLUSION

Dr. Sklaroff has a Legally Enforceable Interest in the unprecedented MSA, inter alia due to his capacities to pursue a wide range of public interest litigation, to file a taxpayer lawsuit, and to function in parens patriae on behalf of his son. Far from “moot,” his pending litigation has been prescient.

He and other activists merit standing, so that they can elucidate clauses in the MSA that require stipulation. The Releasing Parties clause must exclude activists; the Offset clause is procedurally unfair, unreasonable, unconstitutional and inadequate to Pennsylvanians. The AG isn’t empowered to immunize the TI, to countenance use of the offset, or to deprive citizens of civil (due process, constitutional) rights.

Abuse of discretion has been documented related both to these specific concerns and to the generic concerns raised by the absence of Trial Court analysis of the intentionally-vague MSA; it is not fair, reasonable or adequate for the CoP’s youth. These remedies may be achieved through remand (to study its scientific, legal and ethical implications) or through direct intervention by the Court. The MSA is misconstrued as a “useful first step” in achieving decreased tobacco use in America and around the world; indeed, it threatens to become “the last word” in meaningful smoking cessation, for the TI will have achieved de facto indemnification.

The Settling Parties are attempting to “have it both ways” for they deny the public any power to enforce the MSA, even as the TI violates it and the AG fails to investigate. These arguments appear in briefs (filed in the year 2000), despite solemn promises they would act responsibly (issued in the year 1999). They misportray the MSA as a contract, when it is a court-approved resolution of a class-action suit.

For these reasons, Robert B. Sklaroff, MD possesses standing to appeal from the Order of Dismissal of his Intervention Petition and, thus, requests remand of the MSA to the Philadelphia Court of Common Pleas in the CoP.

NOTES

1- This ten-count suit comprehensively elucidated the key factors that have contributed to this epidemic; it sought compensatory, punitive & other damages, civil penalties, and injunctive & other equitable relief. [CoP v. PM, No. 2443 (Philadelphia County Ct. C.P. April 23, 1997).]

2- Thus, those aspiring to retain the right to pursue anti-tobacco litigation could not have known they could become Releasing Parties. [The TI imposed an 11/20/98 deadline for state-level concurrence, affording putative intervenors little time to explore this issue with their AGs.]

3- Court approval was required because the MSA settles claims of minors [n.b., repeated reference in the Recitals to Youth’s alleged benefits]. Pa.R.C.P. 2039, 2064. Also, the CoP’s citizens were represented as a group; class action settlements require court approval. Pa.R.C.P. 1714(a).

4- A hospital group, an insurer, and the County of Allegheny also filed Complaints; the City of Philadelphia filed a brief. [All were filed prior to and orally argued during the Hearings, except for that of the insurer, which was filed late and dismissed due to lack of timeliness.]

5- The petitioners were represented as a group by Alice Ballard, Esquire; subsequent appellate efforts were conducted pro se.

6- “MSA” connotes both the model for the CoP and the document signed in the CoP; the two are identical, in the CoP and in all other localities.

7- The MSA contained far less for public health (legally and fiscally) than the most-recently effectuated state-specific settlement (in Minnesota); thus, critical analyses thereof (including one from Dr. Sklaroff & Messrs. Barg & Godshall) were published in the lay and professional literature.

8- “State-Specific Finality” was sought from 46 states (plus the District of Columbia) and five United States territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico and Virgin Islands).

9- In most states, approval was perfunctory. In a few, hospitals and governmental subunits raised objections; smokers raised concerns in two. In New York, anti-tobacco activists led a serious, focused challenge.

10- The TI cannot claim any “non-severable” clause would, if severed, suddenly render it unable to conduct their businesses in the CoP, inasmuch as such constraints do not exist in the first four settling states.

11- [Bracketed References are to excerpts from the MSA.]

12- Legislation based on Exhibit T (“Non-Participating Manufacturers”) threatens to do that, for CoP HB-445 affords “stealth immunity” by omitting reference to the qualifying clause while affirming the immunity. Dr. Sklaroff’s testified accordingly before its Courts Subcommittee.

13- “No portion of this Agreement shall provide any rights to, or be enforceable by, any person or entity that is not a Settling State or a Released Party. No Settling State may assign or otherwise convey any right to enforce any provision of this Agreement.”

14- The Coalition continues to lobby for use of MSA monies that complies with the CDC’s “Best Practices” Guidelines. In Pennsylvania (unlike other states), health initiatives are to be supported—consistent with goals of the initial lawsuit—focusing on Medicaid. Yet, the Coalition strives to maintain a 25% tithe for tobacco prevention and cessation programs, even as others ignore tobacco and youth. It opposes a fiscal free-for-all, as evidenced before the CoP’s House Appropriations Committee on March 16, 2000. The Dean of the University of Pittsburgh Medical School would fund the Human Genome Project (well-funded and almost complete) claiming this would help identify potential nicotine addicts; Dr. Sklaroff immediately testified this was “quite a stretch,” medically.

15- They obtained seriatim a Rule that scheduled a Hearing in Motions Court before Judge Mary D. Colins and an Order that transferred the proceedings to Judge John W. Herron, despite CoP/TI opposition.

16- As an example, note this exchange (N.T., 1/8/99, page 58):
Herron: Does the MSA in any of its provisions prohibit the use of seeking to enjoin certain conduct or activity assuming one would have a right or standing to bring such injunction?
Attorney: Assuming that you get over any hurdles if they are asserted with regard to the MSA and you can bring a claim, and I can ask my colleagues again, but I do not believe that there are prohibitions on that.
Herron: All right. I’ll wait for that answer

17- The Activists failed to cite “a single case in their petitions or memoranda to assist the court in determining whether they have, in fact, asserted a LEI.” …. The Activists cited “to no concrete harm other than the potential (but as yet undetermined) effect of the release.” …. Allegations that future claims would be subject to the MSA were termed “hypothetical.” .… “On the present record, the petitioners fail to present an actual case or controversy—a LEI—ripe for disposition.”

18- No “advisory opinion” had been requested, either orally or in the brief.

19-Activists had clearly asserted the former, without denying the latter.

20- Societies often maintain inertia that seeks to preserve their institutions, no matter how onerous. Thus, individuals are often overwhelmed by the sheer size of a menacing corporation, and tend to capitulate. Cynics refer to “all the democracy money can buy,” but altruists point to the inability to “buy happiness.” Intervenors are “irresistible forces” encountering the “immovable objects” in the forms of Settling Parties. It is the role of government—and, in this instance, the judiciary—to rectify these forces.

21- In a March 1 letter, the AG threatened to force the activists to pay legal costs plus 6% per annum of $11.2 Billion. This gross intimidation threatened to obstruct justice by denying individuals constitutional access to the courts, free speech, civil rights, and equal application of the law, but the AG said it was a “friendly reminder.” As a result, the other activists discontinued their appeals, rationalizing this “strategic retreat” by arguing the lower court opinion would facilitate future enforcement.

22- Dr. Sklaroff, as the Petitioner/Appellant, is in a position to re-inspire a dormant pursuit. The capacity for public health entities to pursue the commonweal is on life-support; if it succumbs, it will become virtually impossible to aid the general public. The MSA is known to be deficient, but many of Dr. Sklaroff’s colleagues view this legal fight as quixotic.

23- This would be the CoP’s largest health care organization consolidation.

24- He alleged they have a monopoly/monopsony and have abrogated their Social Mission, a pattern of conduct that has intensified from 1996-2000.

25- The PA Society of Internal Medicine [“PSIM”], Dr. Sklaroff and the PA Medical Society are full parties before the PA Insurance Department, which initiated the process of holding full adjudicatory adverse-party public hearings in March, 1999; two other entities are amici curiae.

26- “Unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” § 17200, et seq. . Comparable statutes exist in the CoP, such as the UTPCPL (73 P.S. § 201-4) that authorizes the AG to seek injunctive relief to enjoin fraudulent trade practices.

27- The PSIM & The Philadelphia County Medical Society endorsed it.

28- The CoP has shown little interest in probing such abuses in the past.

29- The Settling Parties failed to identify any facet of the MSA they admit must be subject to prior judicial approval; this is predictable for—if they had their way—it would be rubber-stamped without any need for review.

30- These started during his medical oncology fellowship at the Memorial Sloan-Kettering Cancer Center (1977-1979) and have continued unabated in all available forums (public and professional) since that time.

31- The Settling Parties act as if they have suddenly discovered the “emergency” of the tobacco abuse epidemic (tenaciously, loudly and robustly ignored by the TI over the decades). Evidence of public health damage emerged in the medical/lay media more than a half-century ago, led to annual reports issued by the U.S. Surgeon General starting in 1964, and reached generalized public consciousness during 1994 House and 1998 Senate Hearings. And the Government must recognize that the need to fund Tobacco Control isn’t contingent on the MSA’s existence.

32- Indeed, “An application for intervention may [not “must”] be refused if ‘the intervention will unduly delay, embarrass or prejudice. . . adjudication of the rights of the parties’ ” [Pa.R.C.P. 2329(3)].

33- The haste to approve the MSA in the CoP was patently political, as well. First, the City of Philadelphia filed a brief that raised two concerns that were unsatisfied, but that led to no further legal action. (It stated the defendants had “an obligation to file a petition for interpleader to bring the City of Philadelphia into the case as a party,” and it averred “the Court should require the parties hereto to clarify their position on the scope of the release.”) Second, the County of Allegheny (Pittsburgh) precipitously dropped its appeal, according to a published account written by its lead-counsel, after Governor Tom Ridge threatened to slash funding for its airport. (The Commonwealth Court permitted this to occur absent submission of a proper application—violations of procedure detailed by Judge Kelley—but the PA Supreme Court denied Dr. Sklaroff’s Petition for Review of this particular issue.) Third, journalists have been told that the AG rationalized not suing against the billboards because he feared loss would create adverse precedent [personal communication]; yet, such reticence persists following the filing of litigation that would compel him to do so. [Most everyone became mesmerized by power to spend a “wind-fall,” as the TI had anticipated.]

34- The MSA would have the AG waive rights he was sworn to defend and enforce. He cannot reverse judicial decisions (protecting citizens’ rights to sue) or rescind state legislative actions (authorizing qui tam filings).

35- Cursory review of the New York State Constitution (Article V) did not yield language that could be compared/contrasted with that of the CoP; nevertheless, this is a stand-alone quotation that is consistent with what had been stated during oral argument [vide supra] and with what Dr. Sklaroff has sought. The AG only avers a stipulation is “unnecessary.”

36- In addition, the CoP should not have attacked the existence of the Allegheny County RICO filing, for any comment thereupon should have been strictly legal in focus and manifest

Respectfully submitted,

s/ ROBERT B. SKLAROFF, M.D.