Subject:
             Enforcing the MSA against PM - Reconsideration Petition
        Date:
             Mon, 22 Nov 1999 06:34:03 -0800
       From:
             "Robert B. Sklaroff, MD" <rsklaroff@home.com>
 Organization:
             @Home Network
         To:
             Settlement Talk Discussion List <settlement-talk@smokescreen.org>
 
 

Philip Morris violated the Master Settlement Agreement when it financed
placement of billboard advertising for Marlboro cigarettes, this past
Spring.  An appropriate suit was filed, but Judge Herron (who approved
the MSA) rejected it by honoring Preliminary Objections predicated (as
has become customary) on "standing" and "mootness" concerns.  This
modified-petition will be filed today, although prospects are dim that
it will affect his decision.  The larger purpose, here, is again to
reveal another result of the collaboration between Big Tobacco and Big
Government.

The document is attached and, also, is reprinted below; critique is
invited, inasmuch as the AG has just filed a "Motion to Quash" my
Supreme Court "Petition for Review" also due to "mootness."  Because it
concomitantly filed a motion intended to expedite the adjudicatory
process, it is unlikely that I will have the luxury of composing a
response during the next fortnight.  Therefore, any suggestions with
regard to this "legally enforceable interest" issue are invited.

I have just been granted a web site through GlobaLink in Geneva and
(once I've figured out how to upload these documents) future e-mails
will predictably be shorter.  I also have an "arrangement" with one
opposing counsel (a personal friend) who promised he would convey all
such filings electronically; upon receipt, these will also be uploaded,
satisfying "equal time" concerns.

Finally, I was interviewed yesterday by "Fox 43 News" in Harrisburg,
yesterday, and I emphasized the self-contradictory assertions issued by
the AG during the past year regarding immunity.  Again noted is the AG's
claim that it is "unnecessary" to rectify this matter through issuance
of stipulations; again noted is my pledge to terminate my appeal were
this to be accomplished.

*

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

____________________________________
 ROBERT B. SKLAROFF, MD
pro se

        v.

PHILIP MORRIS, INC.,
c/o Mary A. McLaughlin, Esquire
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA  19103-2793
COURT OF COMMON PLEAS
PHILADELPHIA COUNTY

CIVIL ACTION - EQUITY

MAY TERM, 1999

No.  2101

MOTION TO REARGUE AND/OR RECONSIDER OF PLAINTIFF, ROBERT B. SKLAROFF, MD

Robert B. Sklaroff, MD, files this Motion to Reargue/Reconsider (in
narrative form, minimizing redundancy) due to the filing of an Order (on
November 10, 1999) by Philadelphia Court of Common Pleas Judge John W.
Herron dismissing this Complaint.  The Plaintiff harbors no illusions
regarding the legal prospects of this effort, but he wishes (at the very
least) to clarify his goals, inasmuch as the Defendant Philip Morris
["PM"] is 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"] and inasmuch
as final approval thereof pends before the CoP Supreme Court (via a
"Petition for Review").

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 been developed during this calendar year, information
that could sway-if not the status of the instant case-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).

1.      "His lawsuit therefore does not test the scope of the release set
forth in the MSA."
Judge Herron 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."    This is quite true, inasmuch as the thrust of Dr.
Sklaroff's argument is that someone 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 (with voluntary removal of the billboards), whether the overall
campaign complies with the MSA cannot be determined (either by the AG or
by Dr. Sklaroff) due to inability to review the contractual PM-Wawa
relationship (through discovery).

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.

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 one point 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 essay, inasmuch as larger
goals cannot even be addressed, no matter how justified and no matter
their implications.

3.      "Dr. Sklaroff asserts. . .a common interest shared by Pennsylvania
citizens."
Surprisingly, Judge Herron fails to deal with the extensively-documented
"standing" argument that is based both on tobacco-related activity (that
spans two decades) and 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 fails to explain why he concluded Dr. Sklaroff has not
presented direct, substantial and immediate claims that surpass those of
the public; were he to try to do so, he would have to invoke idealized
criteria.  [Even the AG has (painfully) accepted this.]

4.      "Plaintiff is thus asserting an interest aggrieved by the Attorney
General."
Judge Herron would have Dr. Sklaroff sue the AG in Commonwealth Court in
order to compel him to enforce the MSA.  He thus disregards the concept
of "Private AG," recognized (within the context of RICO) thusly:  "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.]
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." and he
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, and thus
fails 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 should sue the AG) would have been
supportable.  In this instance, however, Dr. Sklaroff acted because the
AG chose not to [for whatever reason(s)].  Judge Herron fails to deal
with the ultimate public health concern, 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 sufer 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).

For all these reasons, Plaintiff Robert B. Sklaroff, MD respectfully
requests Judge Herron reconsider his Order.  Again, a key disclaimer is
that co-counsel have been identified who would be willing to engage in
oral argument with regard to this issue, upon request.
 

Respectfully Submitted,

CERTIFICATE OF SERVICE
 
 

I, Robert B. Sklaroff, M.D., hereby certify that on this, the 22nd day
of November, 1999, I caused a true and correct copy of this motion 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