STATEMENT OF THE CASE

This is motion for reargument/reconsideration of an appeal of a final order approving the order issued by Judge John W. Herron of the Philadelphia Court of Common Pleas denying the petitioner/appellant Robert B. Sklaroff, MD standing, and approving a Master Settlement Agreement ["MSA"] between the Attorney General ["AG"] of the Commonwealth of Pennsylvania ["CoP"] and the Tobacco Industry ["TI"]{Appendix A}.

Great reliance will be placed on the Minority Opinion authored by Judge James R. Kelley because he concluded this "entry of judgment based on such a speculative and conjectural predicate affecting such significant rights must surely constitute an error of law."  Indeed, the Majority Opinion authored by Judge Bonnie Brigance Leadbetter would have been easier to accept were it to have addressed the fundamental issues that he raised.  Yet, although Judge Kelley did not specifically address the issue of Dr. Sklaroff's standing, points raised in the previously submitted briefs were amplified following extensive study of such issues
as "parens patriae" and the PA rules governing withdrawal of an appeal.  Clearly unrefuted was his conclusion 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."  At the least, the Court is obligated to refute these
concerns before the matter is ultimately put to rest.

A.      Dr. Sklaroff has a direct, substantial and immediate interest in the MSA.
The Majority Opinion is based on a phrase that is incorrect, irrelevant and undocumented.  It avers "other entities such as the Commonwealth do have a direct, substantial and immediate interest and are, in fact, vigorously litigating on behalf of the public."  There is not a shred of evidence to support this sentence, either in the legal or public record; neither the Commonwealth nor any other entity is currently prosecuting any tobacco issue (let alone doing so "vigorously").  Even were that the case (i.e., that government entities have standing to represent the public, a "truism" if ever there was one), the key issue is whether Dr. Sklaroff merits standing.  And there is no documentation in the record-other than the unrefuted data submitted by Dr. Sklaroff-that undermines the view that Dr. Sklaroff merits standing, either based upon his direct, substantial and immediate interests (as exemplified by his filing against Philip Morris, Inc., pending in Philadelphia) or based upon his taxpayer status.  Even the Settling Parties have never refuted this view, either in the Commonwealth Court or in the Court of Common
Pleas (on this matter and on that related to the conduct of Philip Morris, Inc.).  There is no justification for the Majority not to
"reach" the issue of Dr. Sklaroff's standing, regardless of that of the AG. Indisputably, the petitioners (individually and collectively) have developed a credible "record," as the AG admitted during multiple media interviews and as he admitted directly to Dr. Sklaroff in a recent letter-exchange. {Appendix B}  Specifically, he cited the testimony of the Coalition for a Tobacco Free PA (Secretary:  Dr. Sklaroff) and many of his fiscal recommendations are drawn directly from those of the
Coalition.  Thus, if it deals with the factual and legal arguments previously provided, the conclusion is inescapable that Dr. Sklaroff and the other putative intervenors merit standing.

B.      Dr. Sklaroff merits standing regarding the MSA as a taxpayer.
In its brief detailing its Preliminary Objections to Dr. Sklaroff's Complaint regarding billboard advertising, PM cited the Biester
exception, but reflexly argued the AG is better situated than is Dr. Sklaroff to enforce the MSA without exploring why.  To the contrary, were the CoP ultimately to prevail in any enforcement proceeding, the "offset" clause would then preclude any net fiscal impact on either involved party (PM or the CoP).      In counterdistinction, Dr. Sklaroff has demonstrated greater motivation to pursue public interest matters such as the MSA violation that sparked the instant case, and penalties extracted subsequently from PM would not be subject to the "offset" clause that otherwise binds the CoP.  Dr. Sklaroff satisfies the other prongs of the Biester exception, an unambiguous assertion that should be determinative, but that PM never challenged   [in either its Preliminary Objections or in its filings with Commonwealth Court].

Also, as exhaustively documented by Judge Kelley, the MSA cannot merely be construed as a government contract.  It is intended to be used judicially to enforce a stipulated settlement of a lawsuit; this adds to the responsibilities of the court.  ["The contractual nature of a consent decree does not affect the judicial character of a court's acceptance of the decree or its imposition of judgment thereon."] Thus, refutation of PM's deft and bold effort to relegate the MSA purely to "contract" status obviates the need to rebut myriad conclusions that mistakenly were derived therefrom.  Therefore, even if "members of the
public are merely incidental beneficiaries of a government contract and have no actionable rights thereunder," public interest is hardly "incidental" regarding the MSA.   Thus, Dr. Sklaroff has standing to refute this judicially-reviewed document.
This lawsuit's procedural history illustrates why Dr. Sklaroff meets all five prongs of the Biester exception:  (1)-governmental (in)action went unchallenged;   (2)-those directly affected (PM and the CoP) were beneficially affected by this inaction; (3)-judicial relief is appropriate (as it was in Rhode Island, vide infra); (4)-redress through other channels is unavailable; and (5)-the AG failed to act.  Indeed, in his most recent communication with Dr. Sklaroff, he demonstrated no intent to alter previously-established intransigence.

C.      The Courts are obligated to apply a "Class Action" review standard to the MSA.
Although Judge Leadbetter discarded the issue of a "class" because she had concluded Dr. Sklaroff lacked standing, Judge Kelley provided a detailed exploration of this issue. His analysis was mutually exclusive of whether Dr. Sklaroff, indeed, merited standing, inasmuch as he traced a solid, logical path from the British origins of the concept of "parens patriae". . .through the filing of the lawsuit against the TI. . .to the present day.  He concluded, "I strongly believe that it was incumbent
upon the trial court in this case to make an independent examination of the proposed settlement and consent decrees, and to refuse to accept either unless it determined, among other considerations outlined below, that the '[j]udgment to be entered is a just one. . . .' "  This is consistent with the views articulated in prior briefs that the trial court was obligated to ensure the settlement was fair, reasonable and equitable with regard to youth (as an example of one such "class").

Indeed, Judge Kelley asserted the need "to protect the rights of minors in the settlement of their claims. . . .to ensure that the interests of the minor are protected above all other conflicting interests, and to protect the minor's interests in all phases of litigation."  Absence of this phraseology in the trial court opinion renders it prima faciae inadequate.

D.      The Court must strike or modify the MSA
Judge Kelley concluded that, "prior to approving a settlement, the court should conclude that it secures an adequate advantage for the class in return for the surrender of litigation rights."  He based this view on seven criteria that should be considered in this context, and he asserted that they hadn't been properly applied; the result of his analysis was:

Thus, because this case was initiated, in part, as parens patriae for the protection of Pennsylvania's children and adolescents, and because the purported settlement extends to extinguish the potential claims that could be raised by a large class of unrepresented plaintiffs, it is my firm belief that the principles underlying Rules 1714, 2039 and 2064 of the Pennsylvania Rules of Civil Procedure apply in this matter.  Because the trial court's acceptance of the proposed settlement and consent decrees does not meet the mandates of these Rules, its orders accepting these decrees and entering judgment thereon should be  erversed.

Specific reference is made to the "releasing parties" section of the MSA during prior discussion of this matter, and it is clear that the heart of his argument is derived from the broad indemnification of past/present/future TI conduct that is inherent in the MSA.  Although he did not discuss the "offset provision" that is linked therewith in the MSA, identical considerations are applicable in that venue.  (Much of the "double-negative" phraseology in the "offset" section relates to direct citation of the "releasing parties.")

Thus, the Commonwealth Court could rectify the entire matter were it to strike these unprecedented, overly-broad, unconstitutional clauses that contravene public policy.   Alternatively, it could remand the matter for a full hearing, permitting the trial court to ensure the interests of the previously-unrepresented parties were averred by advocates.  This need not only be limited to youth, although this "class" clearly is the major concern.  In this regard, Judge Kelley cited all the categories
listed in  II (pp) from the MSA.

Therefore, Dr. Sklaroff has hastily acquired endorsement letters from two entities that had counted themselves among the thirteen that had initially participated in this Appeal (Peoples Medical Society and SmokeFree Educational Services, Inc.)  {Appendix C}  Additional entities and individuals could be invited to participate in these proceedings, either following application or after having been invited to do so.  For example, two others provided verbal support from their executive
leadership for this effort (American Council for Science and Health, and American Association of Public Health Physicians).  Either by direct action or by remanding for action, the Commonwealth Court must act.

E. The Court must reactivate the appeal of the County of Allegheny
Judge Kelley exhaustively rebutted the procedure by which the discontinuation by Allegheny County was accepted without comment or challenge by the Court's Majority, despite lack of compliance with Pa. Rules of Appellate Procedure #1973(a) & 123(a):

1973:   An appellant may discontinue an appeal after argument by leave of court upon application.

123:    An application must, inter alia, state with particularity the grounds on which it is based, and shall set forth the order or relief requested. . . .Any party may file an answer to an application within 14 days after service of the application.  [I would have invoked criteria listed in Pa.R.Civil.P #229 (unreasonable inconvenience, vexation, harassment, expense or prejudice)].

Information that has received public release within recent days dramatizes the importance of complying with these rules.  {Appendix D}  If political pressure caused this action,  the court could properly reject it, invoking reasons that are articulated in other rules, particularly if the rights of other parties (such as Dr. Sklaroff) are injured in the process.
Judge Kelley noted that "in this case, the application to discontinue does not demonstrate any cause, much less good cause, for discontinuing the instant appeals.  In addition, because of the enormity of the settlement in this case, and the profound impact it will have on the substantive rights of the Commonwealth and its various constituents and, ultimately, the citizens of this Commonwealth, these factors dictate that this Court give this matter our full attention and consideration.

Based on all of the foregoing, I believe that the instant application to discontinue should be denied."  Later, he cited P.R.C.P. Rule #229, which states in pertinent part:  "The court, upon petition and after notice, may strike off a discontinuance in order to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense or prejudice."  In this case, Dr. Sklaroff could easily aver that each of the aforementioned had transpired, inasmuch as he has been portrayed inappropriately (and inaccurately, as he now can prove) as functioning alone.

By information and belief, Dr. Sklaroff had concluded that the withdrawal of Allegheny County had political roots, inasmuch as efforts to acquire a copy of any document that purported to settle the county-state issues seemed elusive.  The reason why this occurred now emerges-allegedly-and the news is disquieting, unnerving, cynical, corroborative. It reaches the public via "an editorial rebuttal" published on August 18, 1999 in the Pittsburgh Tribune-Review, authored by William Pietrogallo, II, Esquire.  After having reviewed the justification for counties suing the TI, he detailed the relative contributions of the three law firms representing Allegheny County.

Reminiscent of all the "wrong" reasons why withdrawal occurs (such as fraud, as detailed by Judge Kelley), he then explained why Allegheny County had suddenly dropped its appeal, its needs unsatisfied. His rendition of what transpired follows:

"Along the way, there were numerous political obstacles presented to the Allegheny County.  The most significant came from the office of the governor, who urged the county government that if it did not withdraw its lawsuit against the commonwealth and its lawsuit against the tobacco industry that the governor's office would withdraw its support for certain financial development at the Pittsburgh International Airport.  This was good, strong, effective politics by the governor's office.  No complaints from this quarter about that action."

However, it necessitated that the county make a political rather than legal decision regarding its tobacco litigation.  In short, the tobacco litigation and its possible recovery was subordinated to the interest of the economic development at the airport, with the proviso that the county would be included in the process of dividing the funds from the tobacco litigation.

If there is any further doubt about his view of what transpired, and about how congruent it is with the political concerns raised by Dr. Sklaroff (citing his footnotes in prior briefs), he rebutted the concept that the Commonwealth was being held hostage by the county:  "Allegheny County wanted to insure its portion of the tobacco recovery, just as New York City, Harris County, Texas, and many other counties had done and continue to do. . . .All the county wanted was a recognition of its legal rights so that it could assert them in the appropriate forum.  That forum was to be either the settlement with the TI, or a separate lawsuit against the TI.  The county has relinquished both of these legal causes of action in exchange for a political guarantee of support with the airport development and a seat at the table in dividing the tobacco funds.  That's politics, not law!"

It is recognized that Dr. Sklaroff is (obviously) not a party in the Docket Numbers filed by Allegheny County (455, 456, 456, 460 and 895).  Yet, there is no other party extant that can reasonably assert in this "reargument/reconsideration" forum the viewpoint that has been articulated by Judge Kelley, inasmuch as (presumably) the same political issues forestall any activity by Allegheny County in this venue.  Furthermore, to gain "standing" to assert this concern, it is necessary to note that he was not noticed prior to the action and that he would have opposed it were he provided the opportunity to do so. Given the opportunity, Dr. Sklaroff would provide further examples of how the loss of Allegheny County has caused the "harms" cited
previously.  This is another reason why the entire matter should be remanded for an exploration of the MSA and its implications.  Such in-depth analysis would then permit a cogent conclusion to be drawn regarding the "cost-benefit" impact it would have upon the citizenry, and the reasonableness of claims asserted by Dr. Sklaroff could be determined dispassionately (rather than dismissively).

In light of what occurred in New York, Allegheny County (and the other 66 in the CoP, for that matter) could easily aspire to acquire a significant %-age of the MSA-monies "up-front" (rather than awaiting each year's legislative budgetary allocations).  Therefore, by allowing Allegheny County to withdraw (for unstipulated, probably political reasons), the Court would be depriving its citizens due process consideration of their discrete interests in the matter, reasonably based upon well-defined county-level expenditures for tobacco-related illnesses that are significant, chronic, and not anticipated to end soon.  Recalling the fact that this claim was initially filed to recoup Medicaid-related expenses, and noting the fact that counties are shouldering that burden through various organs, providing significant sums for their use constitutes an appropriate level of recompense.  Such conduct recalls the AG's thinly-veiled but false threat of bankruptcy against Appellants who didn't drop from this effort (successful except for Dr. Sklaroff), certainly not befitting that expected from high (elected) officials.  It continues, as evidenced by the AG's characterization of the current appeal on August 20, 1999 to TV station WFMZ;  the highest law enforcement officer in the CoP stated that lawful exertion of basic rights was "dangerous."  Politics, bombast and rhetoric mustn't supplant legal due process.

F. Conclusion
The standard for review herein is the need for "specification with particularity of the points of law or fact supposed to have been overlooked or misapprehended by the court."  Although certain of the points derived principally from Judge Kelley's Minority Opinion are intended to gain remand because of the absence of a database supporting approval, most clearly corroborate assertions made by Dr. Sklaroff that accepting the MSA in its current form would not benefit the citizens of
the CoP, certainly not its youth.

Dr. Sklaroff appreciates the unstated concern that he may be perceived as presumptuous to become the self-defined arbiter of how the MSA should become manifest in the CoP.  Indeed, he understands that he is "the last man standing" now, except for other groups of people intent upon gaining fiscal standing prospectively {Appendix E}.  In fact, he appreciates he could become responsible for unwinding the settlement process nationally, inasmuch as the constitutional and operational issues raised by Judge Kelley are certainly not unique to this state.  He sees this as a pivotal moment in public health.

The key, however, is that he wants to ensure the medical dictum "primum non nocere" is applied; namely, his first priority is that no harm befall the tobacco control effort.  Thus, he would cede control over the adjudicative process-unilaterally-to those who are far more expert in public health, cessation science, human behavior, and tobacco economics.  He would do so, anticipating that the outcome would benefit the community, and that the entire process would not be driven by those
who seem mesmerized by millions of dollars .

Respectfully Submitted: