Mr. David A. Szewczak
Prothonotary
Superior Court of Pennsylvania
530 Walnut Street
Philadelphia, PA 19106
re: Sklaroff R. v. Philip Morris, Inc.
Dear. Mr. Szewczak:
Enclosed, please find two documents that, I believe, comply with your communications: the Civil Docketing Statement plus seven copies of the above-captioned Appellant Brief.
Please date-stamp the extra copy of the Brief’s cover-page return it to myself in the stamped, self-addressed envelope; these documents are paper-clipped to this cover-letter.
Thank you for your assistance in this matter.
Sincerely,
*
IN THE SUPERIOR COURT OF PENNSYLVANIA
________________________________________________________________________
ROBERT B. SKLAROFF, MD
pro se
--Plaintiff,
v.
PHILIP MORRIS, INC.,
--Defendant
SUPERIOR COURT
Docket No. 225 EDA-2000
Trial Court Docket:
May Term, 1999; No.2
BRIEF OF PLAINTIFF, ROBERT B. SKLAROFF, MD
Outline
A. Herron Opinion Critique
1. “His lawsuit therefore does not test the scope of the release set
forth in the MSA.”
2. “The demurrers as to standing and mootness are dispositive.”
3. “Dr. Sklaroff asserts. . .a common interest shared by Pennsylvania
citizens.”
4. “Plaintiff is thus asserting an interest aggrieved by the Attorney
General.”
5. “A claim premised on the administration and interpretation of a
government contract did not fall within the Biester exceptions.”
6. “The Complaint lacks allegations that would establish standing as.
. . [a] third party beneficiary to the MSA.”
7. “The Allegations of Plaintiff’s Complaint fail to establish standing
under the UTPCPL.”
8. “Since it was this [Wawa] advertising campaign that plaintiff claims
violated the MSA, its discontinuance renders this present action moot.”
B. PM Brief Critique
1. The Complaint should not be dismissed because Dr. Sklaroff merits
standing to enforce the MSA .
a. Dr. Sklaroff Is a Party affected by the MSA.
b. The Plaintiff Has Standing as a Taxpayer to Enforce the MSA.
2. The Complaint should not be dismissed the claims it seeks to adjudicate
haven’t become moot.
a. An Actual Case or Controversy remains “live.”
b. A Reasonable Expectation Persists that the Wrong will be Repeated.
3. Dr. Sklaroff’s claims under the UTPCPL should not be dismissed with
prejudice.
a. Dr. Sklaroff Can Assert Claims Under the UTPCPL as a Private AG.
b. Dr. Sklaroff Can Seek Injunctive Relief as a Private AG.
c. Dr. Sklaroff’s Allegations of Fraud are Sufficient to State a Claim
Under the UTPCPL.
d. Dr. Sklaroff Can Assert a Claim for Damages under the UTPCPL on
Behalf of the Citizens of Pennsylvania.
4. Dr. Sklaroff’s Complaint should not be dismissed for failure to plead
fraud with particularity and for failure to attach writings.
a. Dr. Sklaroff Has Pled Fraud with Particularity.
b. Dr. Sklaroff has Attached Writings.
5. Dr. Sklaroff’s Complaint comports with key concerns raised by Judge
Kelley.
a. The Court’s Failure to Ensure the MSA was Fair, Adequate and Reasonable
is Exemplified by the Necessity for Dr. Sklaroff to Have Filed Suit against
PM for Conduct That Violated Clauses in the MSA.
b. The Court’s Failure to Ensure the MSA was Fair, Adequate and Reasonable
was Speculative and Conjectural and, Thus, Must Yield Dr. Sklaroff the
Chance to Provide the Court Evidence against PM.
*
Robert B. Sklaroff, MD, files this Brief (in narrative form, minimizing redundancy) responding to the filing of Orders (on November 10, 1999 and December 16, 1999) issued by Philadelphia Court of Common Pleas Judge John W. Herron dismissing his Complaint against Philip Morris, Inc. [“PM”], a member of the Tobacco Industry [“TI”] who has flagrantly violated the Master Settlement Agreement [“MSA”] with the Attorney General [“AG”] of the Commonwealth of Pennsylvania [“CoP”]. [Appendices A & B] Litigation directly related to this matter pends both before the Commonwealth Court of Pennsylvania (Sklaroff v. Fisher) and the Supreme Court of the United States (Intervention Petition In re: Fisher v. PM, et al.). A copy of the recently filed Writ before the latter entity has been appended [Appendix C]. As soon as the Attorney General files a Brief to the former entity (having been granted a month-long extension, into April), a copy thereof will be forwarded to ensure the record is contemporaneously complete.
Judge Herron, for the second time, has generated a lucid Opinion that presents a cogent view of the MSA without pejorative reference to its critic(s). Yet, Dr. Sklaroff can now provide clarification based upon data that have emerged during the calendar year 1999, information intended to sway both the status of the instant case and the ultimate disposition of the MSA. Somehow, in some way, the concerns raised in the Minority Opinion generated by Commonwealth Court Judge Kelley must be rectified before the MSA receives state-specific finality in the CoP. [Although the intent of this filing was focused upon the abhorrent conduct of PM, it has been invoked to reflect the existence of a “legally enforceable interest” to justify being granted standing to amend the MSA.]
Thus, that the final disposition of this matter has yet to be determined (following exhaustion of the appellate process) will be invoked within the MSA context to explore the implications of the AG’s failure to prosecute PM for having abrogated the MSA (both the “Third Party” and “Billboard Advertising” sections thereof).
A. Herron Opinion Critique
1. “His lawsuit therefore does not test the scope of the release set forth in the MSA.”
Judge Herron correctly noted Dr. Sklaroff is “not pursuing an independent claim against defendant PM; rather he is attempting to use the MSA as a basis for his claim.” Indeed, the thrust of Dr. Sklaroff’s argument is that someone, somehow, must enforce the MSA. Distilled herein is documentation of an advertising/promotion effort that continues to be mediated through Wawa (both on smaller billboards and in the print media) and that still contains the disclaimer “Manufacturer Sponsored Promotion” (although the price of Marlboro cigarettes has risen during subsequent months). Although one facet of this program ended in May, 1999 (with voluntary removal of the billboards), it predictably recurred (due to inter alia the absence of an Injunction or a Stipulation that this behavior not be permitted). . .and this conduct was amplified both within Pennsylvania (by Sheetz) and nationally (in four other states: California, Kentucky, New Mexico and Wyoming) [Appendix D].
The AG has also failed to enforce other clauses of the MSA with regard to PM’s ongoing youth marketing program, although evidence that he has investigated one facet thereof (the unsolicited “Virginia Slims” mailing) has been noted (following Dr. Sklaroff’s receipt of direct telephone communication initiated by his office, in January, 2000). Therefore, the fact that Dr. Sklaroff is invoking the MSA to justify the instant case must not justify its rejection; rather, it documents PM’s disregard for a document it has touted.
There was never any intent to test the scope of the “releasing parties” section of the MSA when this litigation was filed. Rather, the double-goal was to see that the MSA was enforced (enjoining and fining PM) and to demonstrate that it was dangerous to provide the TI immunity against future behavior, merely because it might be classified as having been pursued in the course of normal business activity (a behavioral “black hole”).
It appears that Judge Herron invoked this observation to justify his decision not to revisit his prior MSA analysis (“similarly, nothing in this opinion addresses that issue”) and, therefore, the remaining comments herein are focused upon his critique of the PM suit. Nevertheless, correlates that exist with the legitimacy of the MSA, proper, are identified, if for no other reason than to ensure these comments will not be misconstrued.
In Dr. Sklaroff’s Reconsideration/Reargument Motion, it was noted that he could not discern whether PM’s overall campaign complies with the MSA (either by the AG or by Dr. Sklaroff) due to inability to review the contractual relationship (through discovery) effectuated between PM and the retailers/distributors who have served as its “fronts.” Indeed, it cannot be determined whether he has yet acquired copies of these documents; this illustrates, again, why private litigation must be permissible and, thus, why standing in the instant case must not be denied to Dr. Sklaroff.
PM has published three newspaper advertisements during 2000 [Appendix E] that illustrate its disingenuous disregard for the public. In “Kids & Tobacco,” a skewed representation of its efforts to curb youth smoking has been conjured. Exemplifying its key omissions is the absence of a commitment to ensure cigarette vending machines are located in adult-only sites, despite its funding of the “Coalition for Responsible Tobacco Retailing’s nationwide ‘We Card’ retailer education and training program. This effort has helped train over 500,000 retail store employees to reject attempted purchases by minors.” In neither this publication, however, nor in the other two [“Change & Tobacco” and “Smoke & Public Places”] has PM admitted to funding such activities as its “Manufacturer Sponsored Promotion” of Marlboro Cigarettes through billboard ads.
2. “The demurrers as to standing and mootness are dispositive.”
These are the two “Catch 22” issues raised through the current suit. Dr. Sklaroff is to be denied standing (through efforts of the TI) to enforce the MSA, while Dr. Sklaroff is to be denied standing (through efforts of the AG) to be empowered to amend the MSA.
Further, the fact that the conduct of one member of the TI was putatively contrary to the dictates of the MSA—at two points in time—is viewed as insufficient to be viewed as an example of a legally enforceable interest (from the perspective of the AG) while it simultaneously allows PM to escape without penalty (from the perspective of the TI). How to puncture this double-seal constitutes the theme of this Brief, inasmuch as larger goals cannot even be addressed, no matter how justified and no matter their implications.
Furthermore, that Judge Herron refused to supplement the record with documentation that proved Wawa had reinitiated its billboard campaign (as had been predicted would occur) illustrates why the case cannot be dismissed due to alleged mootness.
3. “Dr. Sklaroff asserts. . .a common interest shared by Pennsylvania citizens.”
Judge Herron failed to address extensively-documented “standing” arguments based both on tobacco-related activity (that spans two decades) and generic medical-political activity (recognized by Commonwealth Court as meriting standing). That Dr. Sklaroff serves as his own precedent in this regard has been ignored (recalling the criteria employed when he was granted standing to challenge the Blues consolidation) and that Dr. Sklaroff’s MSA challenge yielded Judge Kelley’s corroborative opinion has been sidestepped (despite his extensive analysis of its conjectural origins and import).
Judge Herron failed to explain why he concluded Dr. Sklaroff has not presented direct, substantial and immediate claims that surpass those of the public; it is difficult to conjure what else he could/should do/have done to attain standing in myriad Pennsylvania courts, petitioned during the past 1-1/2 years. Indeed, others have argued that he didn’t argue interests common to all Pennsylvanians during the appellate process, inasmuch as he was (incorrectly) portrayed as delaying receipt of MSA-generated monies in the process.
Thus, he has demonstrated status as a party with distinct goals, and he has asserted a Legally Enforceable Interest representing a case or controversy that continues to be ripe. It may be “over-ripe”—noting the AG’s failure to stop Sheetz from emulating Wawa—but, Dr. Sklaroff asserts that his work has the potential to benefit all Pennsylvanians.
4. “Plaintiff is thus asserting an interest aggrieved by the Attorney General.”
Judge Herron advised that Dr. Sklaroff sue the AG in Commonwealth Court to compel him to enforce the MSA (which Dr. Sklaroff has subsequently done). He thus disregards the concept of “Private AG,” recognized (within the context of RICO) in this fashion: “Both statutes bring to bear the pressure of ‘private attorneys general’ on a serious national problem for which public prosecutorial resources are deemed inadequate.” [Blue Cross and Blue Shield of New Jersey, Inc. et al v. Philip Morris, Inc. et al. 1999 WL 177501 (E.D.N.Y.) F.Supp.2d.] The potential availability of this alternative, however, does not obviate the capacity to pursue litigation directly against PM.
Inasmuch as the AG has “prosecutorial discretion”—a point made both publicly and directly to Dr. Sklaroff by Joel M. Ressler, Esquire, the Senior Deputy AG—it appears he needs help in fulfilling at least one of his duties: “The AG shall collect, by suit or otherwise, all debts, taxes and accounts due the Commonwealth.” [71 P.S. 732-204] The statute [paragraph (c)] dictates that he “keep a proper docket. . .of all such claims” but it does not preclude others from pursuing claims that could yield income to the CoP. Finally, it does not dictate that the only way to achieve this end is to force the AG to act.
It is true that the nature of this action conveys a “grievance” against the AG’s inaction, but the reason for the latter is easily deduced from the existence of the ultra vires offset. Were the AG to attempt to have PM fined, PM could merely deduct that fine from its annual allocated payment to the CoP under the MSA. Clearly, a court-ordered fine (comparable to that imposed in Rhode Island when the MSA was violated) is the intent. Clearly, the AG declines to attempt to acquire it. Clearly, Dr. Sklaroff wants to do so. Clearly, the focus is not a grievance against the AG that would provoke overt litigation. Clearly, the goal is to exact an appropriate penalty against PM for violating the MSA.
5. “A claim premised on the administration and interpretation of a government contract did not fall within the Biester exceptions.”
In his dissent, Judge Kelley noted: “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.”
He then quoted -Pope v. United States, 323 U.S. 1, 12 (1944) thusly:
“A judgment upon consent is ‘a judicial act.’ ” Thus, the impact
of the MSA is greater than that of an ordinary government contract and,
thus, requires additional scrutiny. Similarly, an alleged violation
thereof can affect a taxpayer (such as Dr. Sklaroff).
Inexplicably, a later footnote states “the AG is better suited to assert any claim” as if this Drummond conclusion is applicable in all cases. As has been detailed, Dr. Sklaroff satisfies all Biester criteria, particularly that which relates to the comparison as to which party is “better situated” to assert a claim. Judge Herron (among others who have studied the MSA) fails to address the great impact of the “offset” upon the motivation to enforce.
Judge Herron then concludes “to determine whether a plaintiff has standing under such a contract, a court must analyze whether he or she is an intended beneficiary of it. Even under such an analysis, Dr. Sklaroff cannot establish standing under the MSA.” [citations omitted] One would hope that Dr. Sklaroff (as a CoP resident and taxpayer) would be viewed a priori as an “intended beneficiary” of the MSA—despite the fact that the MSA limits this definition to the settling parties—and thus empowered by Biester. Elevating the perception of the MSA to the status perceived by Judge Kelley allows these criteria to be invoked, absent any specific refutation thereof. Neither the AG nor PM has tried to do so, leaving prior aversions unchallenged; their existence must be weighed.
6. “The Complaint lacks allegations that would establish standing as. . . [a] third party beneficiary to the MSA.”
Judge Herron correctly concludes that Dr. Sklaroff isn’t a party thereto. Thus, he cites a two-part test to determine whether he can be viewed as a third party beneficiary thereof. He then fails to address these points, which Dr. Sklaroff satisfies because he shares the stated intent of the parties to ensure tobacco billboards are banned, and because “the promisee (PM) intends to give the beneficiary the benefit of the promised performance.”
Instead, he focuses upon “a distinct line of cases involving third party
beneficiaries to a government contract such as the MSA” and his conclusion
is based upon the identical quotation from the MSA as was included by Dr.
Sklaroff in his complaint: “If an issue arises as to whether a Participating
Manufacturer has failed to comply with an Enforcement Order, the AG for
the Settling state in question MAY seek an order for interpretation or
for monetary, civil contempt or criminal sanctions to enforce compliance
with such Enforcement Order.” [emphasis added] He fails to
deal with the obvious qualifier, here, in that the AG “may not” pursue
the matter, failing to address the obvious “prosecutorial discretion” enjoyed
by the AG. Therefore, this analysis fails to accept the concept that
any other third party can ensure the “intent” of the MSA is, indeed, satisfied.
Were the word “may” supplanted by the word “must,” the gambit postulated
earlier (that Dr. Sklaroff sue the AG) would have been
buttressed. In this instance, however, Dr. Sklaroff acted because
the AG chose not to [for whatever reason(s)]. The availability of
another avenue of pursuit, even were it honored by the AG, doesn’t obviate
this one.
In short, Judge Herron fails to deal with the ultimate public health
concern here, namely, if Dr. Sklaroff cannot achieve standing to raise
this issue, “How might a violation of the MSA ever be pursued under his
jurisdiction?”
7. “The Allegations of Plaintiff’s Complaint fail to establish standing under the UTPCPL.”
Here, again, Judge Herron bases his conclusion on the alleged inability of Dr. Sklaroff to function as a “private AG.” He views this as a “broad claim” that isn’t supported by the previously-quoted enabling statute, but he fails to explain how he reached this conclusion and he, instead, predicates his view on the obvious fact that Dr. Sklaroff failed to buy a pack of Marlboro cigarettes at a Wawa Food Store for $2.19. Again, he fails to address the pivotal “enforcement” question, seemingly permitting overt MSA violations to exist.
8. “Since it was this [Wawa] advertising campaign that plaintiff claims violated the MSA, its discontinuance renders this present action moot.”
Judge Herron quotes the Commonwealth Court dictum that a case is moot unless “an actual case or controversy exists at all stages of the judicial process.” Yet, he is loath to deal with the fact that the need to punish a violation of the MSA—at the very least—represents precisely the type of “controversy” that pends in the instant case.
Furthermore, he notes three exceptions, any one of which obviates a mootness claim, and all of which may be invoked in this case. This case “involves questions of great public importance,” for it addresses the veracity of the TI as well as the temerity of the AG. This case involves “conduct. . .capable of repetition,” for PM has yet to admit error. And this case involves a party that “will suffer some detriment without the court’s decision,” for the public health (and efforts to stop youth from starting smoking) is injured each time tobacco is inappropriately promoted (as clearly occurred on the Wawa billboards).
Dr. Sklaroff’s filing before Judge Herron cited, contemporaneously, the reinitiation of the Wawa tobacco billboard advertising campaign, inclusive of the previously-employed disclaimer (“manufacturer sponsored promotion”). This unequivocally documented the lack of mootness of this issue, and showed why Dr. Sklaroff’s prior filing was justified (and should have been honored). Although this program initiated another cycle of media attention and public comment from the AG—and was allegedly discontinued a week prior to its anticipated terminus date—the concomitant Sheetz program persisted. Thus, both the absence of a Stipulation/Fine against Wawa and the absence of any pursuit of Sheetz reflect the fact that this matter is far from moot. Both entities (and, indeed, anyone else) can engage in comparable behavior at any time in the future, with abandon.
A reductio ad absurdum scenario can be conjured, therefore, whereby a violation of the MSA would provoke legal action which, due to recognized delays in this process, would ultimately be precluded by subsequent withdrawal of the offending behavior.
Such a cycle would ultimately become prohibitive in terms of energy expenditure and, thus, would de facto yield the ability of perpetrators to engage in reprehensible conduct, at will. Yet, the issues raised herein are de jure active; resolution thereof would preclude the above pattern of behavior, inasmuch as the capacity to gain instant injunctive relief would have been created through prior pursuit of comparable precedent. Again, that the AG has failed to initiate any effort to generate such a “track record” illustrates further why Dr. Sklaroff should not be impeded from doing so. Again, that the AG has failed to address PM’s behavior (having persisted on focusing upon Wawa and Sheetz) illustrates further why Dr. Sklaroff should be able to obtain discovery in order to discern pivotal contractual relationships.
B. PM Brief Critique
Dr. Sklaroff had also replied to PM’s Preliminary Objections in this case, the key facets of which have been reformatted so that they may be confronted directly by the Court.
PM misrepresented the essence of Dr. Sklaroff’s Complaint when his allegation was paraphrased to be “that PM has violated the terms of the MSA by not compelling retailers and distributors—specifically, Wawa Corporation—to remove billboards advertising PM’s products.” The key allegation was that the billboards were definable components of a “manufacturer sponsored promotion” and, thus, that PM knowingly violated the MSA both by allowing Wawa to post them and by actually having financing this process. Both actions violated specific, unambiguous clauses within the MSA signed by PM. Furthermore, the reason why the customary “requisite elements” of the Pennsylvania Unfair Trade Practices and Consumer Protection Law were not specifically satisfied is that Dr. Sklaroff filed this action as a “private AG.” Finally, that Dr. Sklaroff provided a copy of Commonwealth Court Judge James Kelley’s Opinion to Judge Herron yields the inescapable conclusion that he was aware of these deficiencies (even if he failed to address them) prior to his having signed-off on his currently-challenged Order.
PM failed to deny Dr. Sklaroff’s allegations in the Response Brief, and PM must not be allowed to have violated the MSA without penalty or ability to prevent future violations. Because the AG mistakenly feels his obligation ceased after Wawa removed the offending billboards, Dr. Sklaroff must pursue this matter in his stead, as parens patriae.
1. The Complaint should not be dismissed because Dr. Sklaroff merits standing to enforce the MSA .
a. Dr. Sklaroff Is a Party affected by the MSA.
Dr. Sklaroff remains convinced that he has standing to pursue this legal matter, arguments that have been buttressed by the filing of the Dissenting Opinion written by Judge Kelley. The MSA’s inadequacies and loopholes are now starkly apparent, and the TI (in this case, PM) must be forced to remain true to its word. It signed the MSA, and it must comply with its tenets.
Technically, Dr. Sklaroff is a not a signatory to the MSA, but it purports to release his past/present/future claims against PM and, thus, he is de facto a party thereto. He has argued that severance of this clause from the MSA (which the AG has averred he has no power to enforce) would obviate his entire involvement therein. Its presence, however, mandates that the public interest be honored (if necessary) by ensuring the limited constraints upon PM be enforced, if they are violated.
b. The Plaintiff Has Standing as a Taxpayer to Enforce the MSA.
PM cited the Biester exception, but reflexly argued the AG is better situated than is Dr. Sklaroff to enforce the MSA without articulating 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 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 has not been challenged by PM [in either its Response to this Complaint or 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,” the public interest is hardly “incidental” with regard to the MSA.
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.
PM ended this section of its argument by averring the AG “has the sole authority under the MSA to seek enforcement of its provisions.” This is the core concern, inasmuch as inaction by the AG would a priori yield the ability of PM to violate the MSA with abandon. The need for a “private AG” then emerges as mandatory.
2. The Complaint should not be dismissed the claims it seeks to adjudicate haven’t become moot.
a. An Actual Case or Controversy remains “live.”
PM cited precedent that concludes removal of the subject billboards
should end the matter, claiming the AG “came to an agreement with Wawa,”
without citing any documentation thereof, other than noting “the activity
purportedly in violation of the MSA ceased.” This assertion
doesn’t square with Wawa’s recidivism.
Neither PM nor the AG publicly acknowledged that the billboards constituted
a violation by PM of specific clauses in the MSA, however, nor did either
party adopt the view that a public outcry had preceded the AG’s activities,
Wawa’s removal of the billboards, and PM’s acquiescence. The result
was anticipated.
Essentially, Dr. Sklaroff is portrayed as unable to take “yes” for an answer. Never addressed, however, is the “live” controversy regarding the fact that PM had financed the placement of these billboards, as documented by the existence thereupon of these three words: “Manufacturer Sponsored Promotion.” Thus, the necessity arose for a fourth party (Dr. Sklaroff) to focus upon this admission, to act upon it, and to pursue reasonable steps to punish PM for having done so.
b. A Reasonable Expectation Persists that the Wrong will be Repeated.
Because none of the involved parties (PM, Wawa and the AG) failed to ensure that conduct violating the MSA will not recur, the reasonable expectation persists that it could be repeated. Indeed, the crass admission that PM had bankrolled such an obvious MSA violation (printed on each billboard) necessitated actions intended to ensure PM would not try to circumvent MSA-mandated constraints.
Precisely on point is the Agreement signed on (or before) May 10, 1999 between the State of Rhode Island and another TI member, US Tobacco, [Appendix 2]. This provides a precedent that the AG should have followed in the instant case, for it meets each and every key characteristic thereof, as will now be detailed.
On April 7, 1999, a spokesperson for US Tobacco claimed smokeless tobacco had not been “scientifically established” to be a cause of oral cancer. Expression of this false view represented a violation of the MSA; the AG immediately acted. The result was an Agreement between the two parties that mandated a retraction and that imposed a $15,000 fine for having made such a false claim. The goal, here, is identical; PM should be enjoined from functioning as a manufacturer that sponsors any promotion of tobacco that violates its MSA-related Consent Decree.
Furthermore, US Tobacco was forced to pay a $15,000 fine for its conduct, “deposited in an account to be used for initiatives related to preventing youth tobacco usage.” An identical outcome is contemplated as a result of suing PM.
3. Dr. Sklaroff’s claims under the UTPCPL should not be dismissed with prejudice.
a. Dr. Sklaroff Can Assert Claims Under the UTPCPL as a Private AG.
The UTPCPL (73 P.S. § 201-4) authorizes the AG to seek injunctive relief to enjoin fraudulent trade practices that violate the statute. The AG has failed to act after having been requested to do so by Dr. Sklaroff [Complaint, 14]. Biester empowers Dr. Sklaroff to act as a private AG when the AG refuses to meet his responsibilities. Inasmuch as the AG has failed to act against PM for conduct violating the MSA, Dr. Sklaroff has done so, basing his actions solely on the public interest; also, PM has failed to cite any statute precluding such an action.
b. Dr. Sklaroff Can Seek Injunctive Relief as a Private AG.
PM cites the statute as concluding that “Only the AG or a District Attorney may seek injunctive relief under the UTPCPL.” Thus, an individual functioning as a Private AG could aspire to achieving a comparable outcome.
c. Dr. Sklaroff’s Allegations of Fraud are Sufficient to State a Claim Under the UTPCPL.
To the degree to which the particularity of the allegation of fraud is considered insufficient–despite its having been filed as a Private AG—Dr. Sklaroff respectfully requests leave to so-amend and amplify upon his Complaint.
For example, the statement by a PM Spokeswoman on the Television Program “Good Morning America” (cited in the Complaint) misrepresented two key tenets of the MSA; she (and PM, in its Response Brief) didn’t recognize the indisputable mandates upon PM to try to stop Wawa both from posting the billboards and from sponsoring promotion of its product in this way.
Therefore, PM placed the public (including youth) in a position whereby it was led to rely upon the contents of the billboard ads and, thus to attempt to buy Marlboro cigarettes for $2.19/pack.
d. Dr. Sklaroff Can Assert a Claim for Damages under the UTPCPL on Behalf of the Citizens of Pennsylvania.
The anticipated outcome of this litigation is not dissimilar, conceptually, to that which occurred in Rhode Island (vide supra). Thus, Dr. Sklaroff contemplates that the result of this lawsuit will directly benefit the public health of the citizenry.
4. Dr. Sklaroff’s Complaint should not be dismissed for failure to plead fraud with particularity and for failure to attach writings.
a. Dr. Sklaroff Has Pled Fraud with Particularity.
The Complaint included such data as “the statement’s author, date, place, and forum of publication” by depicting the photographed billboard alongside I-76. Nevertheless, to the degree to which the particularity of the allegation of fraud is insufficient (as noted previously)–despite its having been filed as a Private AG—Dr. Sklaroff respectfully requests leave to so-amend and amplify upon his Complaint.
b. Dr. Sklaroff has Attached Writings.
Again, PM failed to refute the allegation included in the Complaint, but documentation thereof also includes a videotape containing a close-up of the objectionable phrase [“Manufacturer Sponsored Promotion”] as was aired by “Good Morning America.” Furthermore, a blow-up of a photograph thereof was provided, and the original photograph (which has no reproduction constraints) is available for Court review.
5. Dr. Sklaroff’s Complaint comports with key concerns raised by Judge Kelley.
a. The Court’s Failure to Ensure the MSA was Fair, Adequate and Reasonable is Exemplified by the Necessity for Dr. Sklaroff to Have Filed Suit against PM for Conduct That Violated Clauses in the MSA.
Judge Kelley concluded [emphasis in the original document]:
"The record in this case is absolutely devoid of any evidence establishing the damages suffered by the Commonwealth through its agencies, departments, commissions or divisions, and its 67 counties, and its various municipalities, cities, boroughs, townships, entities, instrumentalities 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."
These issues are explored in the Writ; the key concern here that the MSA’s intent to yield no further litigation against the TI. Thus, extinguishing these rights will carry an enormous fiscal and operational benefit for the TI, including PM.
Litigation has been the principal tool of the tobacco control (and public health) community during the past quarter century, and forsaking it hurts the citizenry. There is already evidence that the TI views the MSA’s “offset” provision as a chance to escape liability totally disparate from the intent of the MSA, for it is attempting to categorize punitive damages awarded in Oregon (for an individual liability case) as encompassed by the “offset” (despite the fact that these monies are explicitly related to and derived from an explicit exclusion in the MSA).
b. The Court’s Failure to Ensure the MSA was Fair, Adequate and Reasonable was Speculative and Conjectural and, Thus, Must Yield Dr. Sklaroff the Chance to Provide the Court Evidence against PM.
In his Dissenting Opinion, Commonwealth Court Judge Kelley concluded that:
"The 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 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."
Because the MSA has not achieved a “state specific finality” level of approval and, thus, because Dr. Sklaroff’s efforts to remove the “Releasing Parties” clause persist unabated, Dr. Sklaroff is not precluded from suing PM under the MSA.
Regardless of the seismic impact of Judge Kelly’s Opinion, the fact remains that his step-by-step analysis of the MSA allows for the filing of litigation such as that being pursued in the instant matter. Only following exhaustion of all appeals, would it be appropriate for Dr. Sklaroff to be subject to the MSA’s constraints.
CONCLUSION
For all the foregoing reasons, Dr. Sklaroff’s Complaint should not be dismissed, in its entirety, with prejudice. Of course, Dr. Sklaroff respectfully requests leave to amend his Complaint should any facet thereof be viewed by the Court as insufficiently pled.
Respectfully submitted,
*
APPENDIX
A. Judge Herron’s Opinion and Order
B. Judge Herron’s Denial of Reconsideration/Supplementation Motions
C. U.S. Supreme Court Writ
D. Documentation of Billboard Advertising funded by Philip Morris,
Inc.
E. Newspaper Advertising by Philip Morris, Inc.
*
CERTIFICATE OF SERVICE
I, Robert B. Sklaroff, M.D., hereby certify that on this, the 21st day of March, 2000, I caused a true and correct copy of this Civil Docketing Statement and this Brief to be sent today, by First Class Mail, to Counsel at the addresses listed below:
Mary A. McLaughlin, Esquire
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
s/_____________________
DATED: March 21, 2000