Subject:
             Remember the Wawa Billboards? They're BAAACK! [part II]
        Date:
             Tue, 23 Nov 1999 08:49:05 -0800
       From:
             "Robert B. Sklaroff, MD" <rsklaroff@home.com>
 Organization:
             @Home Network
         To:
             Multiple recipients of list INTL-TOBACCO <intl-tobacco@essential.org>,
             Settlement Talk Discussion List <settlement-talk@smokescreen.org>
  References:
             1
 
 

The following document will be filed today in the PA Supreme Court.

Robert B. Sklaroff, MD
Suite #130
50 East Township Line Road
Elkins Park, PA  19027-2253
(215) 663-8200
FAX:  (215) 663-8388
rsklaroff@home.com
http://members.home.net/rsklaroff/homepage.html
November 23, 1999

Mr. Charles Johns, Esquire, Prothonotary
Mr. John W. Person, Esquire, Deputy Prothonotary
Supreme Court of Pennsylvania (215-560-6370)
468 City Hall
Philadelphia, PA  19107

re:  Commonwealth of Pennsylvania v. Philip Morris, Inc. et al.  [C.D.
467]
 

Dear. Messrs. Johns & Person:

Enclosed, please find an original & eight copies of my "Reply to
Commonwealth of Pennsylvania's Motion to Dismiss for Mootness the
Petition for Review of Appellant Robert B. Sklaroff, MD and Reply to
Memorandum of the Commonwealth of Pennsylvania in support of Motion to
Dismiss and Response to Petition for Review of Robert B. Sklaroff, MD."

The original has a handwritten "O" in the upper right-hand corner of
page #1.

Please date-stamp the extra copy of the cover-page and return it to me
in the stamped, self-addressed envelope; this document is paper-clipped
to this cover-letter.

Thank you for your assistance in this matter.

Sincerely,

*

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, BY D. MICHAEL FISHER,
IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL

v.

PHILIP MORRIS, INC.,  et al.

ROBERT B. SKLAROFF, M.D.
Appellant

File No.  467 C.D. 1999
 

Commonwealth of Pennsylvania's Motion to Dismiss for Mootness The
Petition for Review
Of Appellant Robert B. Sklaroff, MD
 

ORDER
AND NOW, this --__ day of _______, 1999, upon consideration of the
Commonwealth of Pennsylvania's Motion to Dismiss for Mootness the
Petition for Review of Appellant Robert B. Sklaroff, MD and this
response thereto, it is hereby ORDERED and DECREED that the Motion to
Dismiss is DENIED.

                                                BY THE COURT:

                                                ________________________
                                                J.

 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, BY D. MICHAEL FISHER,
IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL

v.

PHILIP MORRIS, INC.,  et al.

ROBERT B. SKLAROFF, M.D.
Appellant

File No.  467 C.D. 1999
 
 

Commonwealth of Pennsylvania's Motion to Dismiss for Mootness The
Petition for Review
Of Appellant Robert B. Sklaroff, MD
 
 

REPLY TO
COMMONWEALTH OF PENNSYLVANIA'S
MOTION TO DISMISS FOR MOOTNESS
THE PETITION FOR REVIEW
OF APPELLANT, ROBERT B. SKLAROFF, MD
AND
REPLY TO
MEMORANDUM OF THE COMMONWEALTH OF PENNSYLVANIA
IN SUPPORT OF MOTION TO DISMISS
AND RESPONSE TO PETITION FOR REVIEW OF ROBERT B.SKLAROFF, MD
 
 

Robert B. Sklaroff, MD
Suite 130
50 East Township Line Road
Elkins Park, PA  19027-2253
--pro se-
 
 
 

TABLE OF CONTENTS
 

I.      SUMMARY OF THE POSITION OF ROBERT B. SKLAROFF, MD………….........1

II.     REFORMULATION OF THE QUESTIONS PRESENTED…………………...............5

III.    REFORMULATED STATEMENT OF THE CASE…………………………….................8

        A. Procedural History…………………………………………………8

        B.      The Wawa Case…………………………………………………9

IV.     REASONS WHY DR. SKLAROFF'S PETITION SHOULD BE HONORED........13

        A.      The Petition for Review Should Not Be Dismissed as Moot Because
There Continues to be a Case or Controversy in Which to
Intervene…………………………………………………………13

        B.      Dr. Sklaroff Asserts Many Fundamental Bases to Question the Sound
Discretion of the Trial Court …..…………………………13

        C.      Dr. Sklaroff Has Not Misrepresented the MSA; the AG Has……15

        D. The Lone Dissent Provides Additional Legitimacy for Dr. Sklaroff's
Petition for Review…… …..…………………………17

        E. The Continued Appeal is Not Creating Significant Present Harm to the
Commonwealth and Its Citizens……………………………..18

V.      CONCLUSION…………………………………………………...…………….........................18

*

REPLY TO
COMMONWEALTH OF PENNSYLVANIA'S MOTION
TO DISMISS FOR MOOTNESS
THE PETITION FOR REVIEW OF APPELLANT, ROBERT B. SKLAROFF, MD AND REPLY
TO
MEMORANDUM OF THE COMMONWEALTH OF PENNSYLVANIA
IN SUPPORT OF
MOTION TO DISMISS AND
RESPONSE TO PETITION FOR REVIEW OF ROBERT B.SKLAROFF, MD.
________________________________________________________________________

I.      SUMMARY OF THE POSITION OF ROBERT B. SKLAROFF, MD

        Before this Court is the "Petition for Review #1" of Robert B.
Sklaroff, MD.  Dr. Sklaroff has been functioning as the lone appellant
(carrying the organizational endorsements of four organizations) while
attempting to amend the Master Settlement Agreement ["MSA"] effected by
the Attorney General ["AG"] of the Commonwealth of Pennsylvania ["CoP"]
with the Tobacco Industry ["TI"].  For reasons to be detailed-based also
on events that have just transpired-Dr. Sklaroff respectfully submits
that this Petition should be upheld and the CoP's Motion to Dismiss
should itself be dismissed.

Although it remains unclear how to present this issue to the Court for
its Review (a point of contention with the Prothonotary which, until
now, had blocked presentation of this concern), the dismissal of the
appeal of the County of Allegheny should be undone (as per the Opinion
of Commonwealth Court Judge Kelley that constituted Petition #2).

Dr. Sklaroff has extensively documented why he should be granted
"standing" to help amend the MSA, and the dispute regarding its
"mootness" has been amply discounted by recent events to be detailed.
Although it is desirable to eschew redundancy at this stage of the
proceedings, it is necessary to restate key fundamental arguments.
Pivotal among them is the desperate efforts of the AG to avoid
clarifying basic facts.  That he is "running interference for the TI"
appears undeniable, now, even as he claims he has been amply
representing the interests of the CoP citizenry.  Persistent claims that
Dr. Sklaroff's desire for a set of stipulations is "unnecessary" wither
when contradictory media and legal statements are distilled.  And
continuing reassurances that billboard advertising that violated the MSA
could be dismantled by "jawboning" have now been demonstrated to have
been a sham.  The focus of this work remains "public health."
The CoP creates a false sense of urgency with regard to MSA approval in
its work in an effort to forestall meaningful critique thereof.  Thus,
it is amazing to a pro se filer that the set of profound concerns
articulated by Judge Kelley have yet to have been the subject of ANY
rejoinder, either by the settling parties (the AG and the TI) or by a
court.  In light of the sweeping implications of the MSA, it would seem
prudent to ensure any effort to dismiss this action would be denied;
this is now mandatory, now that its factual underpinnings have been
shown to have been fundamentally, demonstrably inaccurate.

Over time, Dr. Sklaroff's personal view of what the MSA should provide
the CoP (and how these monies should be distributed) has evolved.  He
has testified before both houses of the legislature and before a panel
of the governor's cabinet.  Essentially, he has attempted to adopt an
orthodox perspective, reminding government officials of the original
rationale of the litigation that had led to the generation of this
windfall.

Dr. Sklaroff has also noted, increasingly, the fiscal implications of
the MSA, and he has been disturbed that the CoP has been grossly
short-changed through this process.  Initially, he noted the first four
settling states (Mississippi, Florida, Texas and Minnesota) had received
twice the money per capita than had the remaining government entities
(states, territories and Washington, DC) encompassed by the MSA.  [He
also noted with a certain anguish and disgust that the first four states
weren't encumbered by the onerous "releasing parties" and "offset"
provisions that have driven his litigation.]  Recently, noting the
current Engle litigation in Florida, he has read that Wall Street
Analysts predict the bond to be posted by the TI in order to appeal
their guilty verdict may reach $300 billion.  When comparing this figure
to a "piddling" $11.26 billion to be paid to the CoP during the next
quarter-century (a figure that is hardly static, by the way), he notes
that the order-of-magnitude of payments due to the one million smoking
Floridians this year is 1000x that to be paid to residents of the CoP, a
comparably-sized state.  Thus, although there are other facets of the
MSA that merit scrutiny (and the generation of a rudimentary evidentiary
database), the focus of this document will be the CoP's motion.

In response to the rest of the CoP's position (as articulated in its
11/19/99 brief), one must merely appreciate the desire of the CoP to
preclude scrutiny of its conduct.  This filing does, indeed, satisfy all
the requisites for intervention as set forth in Pa.R.C.P. 2327 and 2329;
further, the alleged prejudice that the settling parties would
experience were this matter now remanded to the Philadelphia Court of
Common Pleas would be "offset" by the definable prejudice that
unrepresented parties (youth, incapacitants and incompetents) would
experience forever were this matter buried.  With all due respect
accorded to greater judicial minds than that of Dr. Sklaroff, the MSA
demands study.

The legal point upon which the CoP depends is whether the trial court
had abused its discretion when it had denied the petition to intervene
that, at that point, had been filed by Dr. Sklaroff, two other
anti-tobacco activists (Messrs. Godshall and Barg) and thirteen public
health organizations.  To argue that there is "no basis" for Dr.
Sklaroff's argument creates a standard for review that can easily be
punctured.  Thus, the CoP Supreme Court should not honor the precipitous
Motion to Dismiss for Mootness because it is erroneous, and it should
honor the well-documented Motion to Review because it serves as a
vehicle by which the MSA can finally receive balanced scrutiny.

Obviously, the extensive analyses previously submitted by Dr. Sklaroff
are herein adopted by-reference.  In particular regard, the Opinion
composed by Judge Kelley serves as a benchmark for the nation, even
though he never "reaches" the issue of "standing."  As he traces the
controlling impact of parens patriae litigation from its British
origins, Judge Kelley concludes the MSA must be remanded.  Although such
admissions as these may have shocked the AG, Dr. Sklaroff has stated his
eagerness to serve as a catalyst while anti-tobacco experts (legal,
economic, ethical, etc.) drove the content of an inquiry.  For Dr.
Sklaroff is a physician-activist, hardly an expert in each facet of
tobacco control.  That he has spent two decades (half his chronological
life and all of his professional life) fighting "Public Health Enemy #1"
has provided a certain set of experiences that have culminated with this
set of filings.  But he is QUITE WILLING TO STEP ASIDE if this is deemed
necessary by the CoP Supreme Court to motivate it to remand this matter.

The MSA is, indeed, a seminal document, the largest "private" settlement
of   civil litigation in American history.  Its purported merits,
however, cannot be employed to extinguish the fundamental due process
rights of the people it is supposedly to serve.

II. REFORMULATION OF THE QUESTIONS PRESENTED

1. Should this Court dismiss Dr. Sklaroff's Petition for Review on
grounds of mootness, despite the ongoing existence of an underlying case
or controversy that constitutes a legally enforceable interest that
justifies intervention?

2. Should this Court exercise discretionary review where the single and
narrow legal issue is whether the trial court, affirmed by the
Commonwealth Court, en banc with one dissent (Judge Kelley), abused its
discretion in applying the rules of intervention under Pa.R.C.P.
2327-2329, when it denied Dr. Sklaroff's post-settlement petition to
intervene?

3. Should this Court determine that Dr. Sklaroff has presented a legally
enforceable interest in the litigation and/or its settlement, that Dr.
Sklaroff has standing to intervene, and that intervention would not
cause prejudice to the settling parties as they attempt to resolve their
lawsuit efficiently?

[These are adopted directly from the CoP's Memorandum, albeit from a
contrary view.  They must not be construed as supplanting the three
issues that prompted the appeal; thus, to ensure previously-analyzed
questions are not inadvertently lost in this process, these are
preserved and restated below; they will not, however, be directly
addressed.]

*

1. Did the Lower Courts err when they denied Dr. Sklaroff standing to
intervene in order to assert opposition to approval of the MSA for
well-delineated reasons, litigation involving perhaps the most important
Public Health issue of our time?

a. Did the Lower Courts err when they denied Dr. Sklaroff standing,
inasmuch as Dr. Sklaroff has a direct, substantial and immediate
interest to address key issues in the MSA?

b. Did the Lower Courts err when they denied Dr. Sklaroff standing,
inasmuch as Dr. Sklaroff merits standing as a taxpayer?
 

2. Did the Lower Courts err when they failed to ensure the MSA's
approval encompassed viewing it as a Class Action (that must be fair,
reasonable and equitable inter alia to youth, incompetents,
incapacitants, citizens and taxpayers), instead of letting the AG effect
a contract that was unlawful and/or ultra vires?

a. Did the Lower Courts err when they failed to ensure settlement of
this suit (filed by the AG inter alia in parens patriae on behalf of
children) be approved only after (a)-consideration of its merits
following a complete evidentiary hearing, and (b)-adjudication that such
settlement is in the best interest of its beneficiaries (including, in
particular, minors)?

b. Did the Lower Courts err when they failed to stop the AG from
releasing all future claims of such unrepresented parties where (a)-a
determination of the amount of such future claims was not developed on
the record; (b)-the MSA lacks a provision that would ensure sufficient
money is afforded to cover future awards if MSA-generated monies are
exhausted?
 

3.      Did the Lower Courts err by failing to consider the merits of
specific clauses in the MSA and, specifically, whether they served the
best interests of beneficiaries by being fair, reasonable and adequate
(and not unlawful or ultra vires)?

a. Did the Lower Courts err when they failed to determine (a)-whether
the "Releasing Parties" provision ["II (pp)"] could be construed as
releasing all future claims by such unrepresented parties for
compensatory and other damages (including health care); and (b)-whether
the AG has authority to release such claims and, if so, whether it is
against public policy and/or against the best interests of the
beneficiaries for him to do so?

b. Did the Lower Courts err when they failed to determine (a)-whether
the "Offset Provision" ["XII (b)"] should be limited to Medicaid-related
costs; and (b)-whether the ability to invoke this clause is against
public policy and/or against the best interests of the beneficiaries?

III.    REFORMULATED STATEMENT OF THE CASE

A.  Procedural History

Rather than recount the path followed by this suit during the year after
the MSA was reached (11/16/98), certain disingenuous points made by the
CoP will be critiqued.  Chief among them is the false sense of urgency
that has constantly been promulgated, inasmuch as the MSA affords
mechanisms by which the TI can accommodate a state that wishes to amend
the non-severable portions thereof.  A subsidiary point is the apparent
inability of the AG to risk antagonizing the TI merely by stipulating
his public statements prospectively (to preclude subsequent ambiguity on
fundamental MSA interpretations).

The CoP's access to allocated settlement payments is effectively blocked
until this appeal has been concluded, true, but the "investment in time"
will yield dividends, both legal and fiscal.  The National Association
of Attorneys General announced on 11/12/99 that state-specific finality
had been achieved and that the escrowed funds would be released within a
fortnight.  But the CoP-which is anticipated to propose how these monies
will be used in January, when the Governor announces the budget-will not
be among the recipients, regrettably.  Yet, recent press reports
indicate that proposals for the use of these monies, nationally, will
yield only 3% of these funds being devoted to the basic tobacco
cessation and prevention activities proposed by the Centers for Disease
Control and Prevention, far lower than the suggested 25% figure that has
been promoted by inter alia the Coalition for a Tobacco Free
Pennsylvania (of which Dr. Sklaroff is the Secretary).  Indeed, neither
the AG nor the Governor have committed themselves to this fundamental
effort, despite the issuance of numerous educational and scientific
dicta.

Thus, presumed fiscal urgency cannot displace scrutiny of "class-action"
considerations.

The AG correctly quoted the Majority Opinion issued by Commonwealth
Court, to wit:  "Dr. Sklaroff's desire to represent the public interest
is insufficient to confer standing, particularly where, as here, 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."  The AG, however, failed to corroborate the accuracy of
this statement, an undocumented, false and irrelevant assertion.  There
is not a scintilla of evidence in the record to support the conclusion
that ANY entity (other than Dr. Sklaroff) has any pending litigation "on
behalf of the public"; the record contains ample documentation only that
Dr. Sklaroff has filed such litigation (the Wawa case); and whether the
AG has standing is irrelevant to (and begs the question of) whether Dr.
Sklaroff merits standing.

B. The Wawa Case

Somewhat fortuitously (for the purposes of this appeal), Wawa Food
Markets decided to reinitiate its advertising campaign on behalf inter
alia of Marlboro Cigarettes.  This effort is documented in the 11/23/99
front page Philadelphia Inquirer article that follows in its entirety.
Thus, all protestations that this litigation has been mooted-out because
the billboards had been dismantled a half-year ago are denuded, for the
conduct feared has been the behavior realized.  Absent a Court Order
(and fine), the MSA is now being flagrantly violated. . .and the AG is
"looking into" the matter.  It is uncanny that he (who had helped
compose this document) appears again to be "rediscovering the wheel"
while everyone else clearly recognizes the game that the TI is playing
with the MSA.

Other media (print and broadcast) are said to have covered this event,
but the piece written by Mr. Justice-emphasizing the AG rather than Dr.
Sklaroff-is apt.

*

State looking into Wawa's cigarette ads.
The deal with tobacco firms didn't include retailers.
The Delco chain's billboards, and critics' ire, are up anew.

By Glen Justice
INQUIRER HARRISBURG BUREAU

HARRISBURG - Earlier this year, major tobacco companies agreed to stop
advertising on billboards in a settlement with 46 states aimed at ending
health-related lawsuits. Retailers weren't part of the deal.

And so Wawa Inc., for the second time this year, is taking its low-price
message to the public. Billboards have recently appeared in downtown
Philadelphia, proclaiming:  "Lowest pack prices allowed by law. # 1
brand even lower!"

Antitobacco activists say the billboards violate the nationwide tobacco
settlement.

Yesterday, State Attorney General Mike Fisher - who is responsible for
enforcing the settlement in Pennsylvania - said he was looking into the
ad campaign.

Wawa officials, meanwhile, note that the billboards do not contain
tobacco-company symbols or logos and say their competitors are producing
similar ads.

"The settlement did not include retailers," Wawa spokeswoman Lori Bruce
said. "Therefore, billboard advertising by retailers is legal."

The $206 billion settlement prohibits, with few exceptions, the tobacco
companies from erecting billboard-style advertising. Statewide, tobacco
billboards came down in April and antismoking messages were unveiled.

The settlement also contains language that prohibits tobacco companies
from authorizing other companies to advertise their brands. It requires
tobacco companies to take "commercially reasonable steps" in the event
that a third party, such as a retailer, advertises brand-name
cigarettes.

But it does not specify what those steps should be.

"We'll take a look and our lawyers will look at [the settlement], and
we'll go from there," Sean Connolly, a Fisher spokesman, said. "I can't
tell you what action we will take."

In May, a Wawa billboard campaign touting Marlboros prompted Fisher to
negotiate with the company. Wawa voluntarily took down the ads. But it
announced a week ago that it was reinstating them - without specific
mention of any brand name.

The ads neither depict cigarettes nor contain the surgeon general's
warning. They do not even include the word cigarettes. Rather, they
contain the Wawa logo, a warning that Wawa does not sell tobacco to
minors, and a slogan promising the lowest prices on the leading brand.

Activists, however, say that everyone knows that the number-one brand is
Marlboro, manufactured by Philip Morris, and that the ads are nothing
but an end run around the settlement.

"This is incredibly devious," said Jeff Barg, chairman of the
Philadelphia-based Tobacco Free Education and Action Coalition for
Health. "They are trying to get away with promoting low-priced
Marlboros, but they don't say, 'Cigarettes,' they don't say,
'Marlboros.' It's indirect, but it's clearly there."

Officials of Wawa, a Delaware County-based convenience-store chain, did
not say how many billboards had been erected, but antitobacco activists
said two had been spotted, one on City Avenue, the other near 30th
Street Station.

When the May billboards touting Marlboros were pulled by Wawa, a company
release said that the ads had been "effective" but that "we have decided
to discontinue their use." The release claimed that Wawa had no legal
obligation to discontinue the ads but that they had "created confusion
in the marketplace."

Activists who protested the May billboards wanted Fisher to seek
sanctions against Philip Morris, rather than negotiate with Wawa. One
activist, Dr. Robert Sklaroff, filed suit in Philadelphia Common Pleas
Court, asking that the court sanction the cigarette maker. The suit was
thrown out last week.

Now, activists are again asking Fisher to address the matter, which they
call a "clear-cut violation" of the settlement.

"The fact that Wawa is doing this again indicates to me that he made a
mistake by not going for sanctions," Barg said.

Connolly, though, said that any violation had to be clear-cut and the
ads investigated. He said limits on retailer advertising are a "gray
area," unlike the language that applies to tobacco companies.

"We expected skirmishes over what is covered," he said.

Wawa officials, meanwhile, say competitors in three of the five states
where the company does business - including Pennsylvania - are using
billboards. Furthermore, Bruce said, the price break was available for
only a short time, and the ads should eliminate earlier complaints.

"The billboards are very general in nature," she said. "These billboards
do not use any symbols or logos."

The billboards are part of a larger campaign that includes print
advertising.

Bruce said Philip Morris had nothing to do with the campaign. A
"manufacturer-sponsored promotion" label on the billboards refers to the
price break, she added.

Philip Morris officials also said yesterday that the company had had no
involvement with the campaign and had yet to even see the billboards.

"We don't encourage others to do what we can't do," Philip Morris
spokesman Mike Pfeil said.

*

Thus, the TI (specifically, PM) has launched a campaign that satirizes
the MSA.  To appreciate the profundity of this effort, the entire text
of the ad must be provided:

        Lowest Pack Prices Allowed by Law.
        #1 Brand Even Lower!
        It's the Law.  We don't sell tobacco products to persons under 18.

Parsing this ad is particularly enlightening.  In addition to the
insights provided by Mr. Barg in the above article, one must raise
disturbing concerns that may violate other laws (state consumer
protection and federal cigarette labeling).  For example, the absence of
the Surgeon General's Warning unabashedly violates 15 USCS 1333, and PM
cannot hide behind the theory that its logo for Marlboro has been
omitted, inasmuch as direct reference is made thereto through the
statement that cites the "#1 Brand."  Furthermore, one must wonder how
one can charge a "lower" price than that "allowed by law," for this
smacks of illegality that warrants detailed scrutiny of the contractual
arrangement between Wawa and PM, precisely the type of effort
contemplated in the litigation filed by Dr. Sklaroff in the Philadelphia
Court of Common Pleas (regarding which he filed the appended appeal on
11/22/99).  The AG's failure to sanction PM is now undeniable.

IV.     REASONS WHY DR. SKLAROFF'S PETITION SHOULD BE HONORED

A. The Petition for Review Should Not Be Dismissed as Moot Because There
Continues to be a Case or Controversy in Which to Intervene

The CoP notes that there is a requirement for an actual case or
controversy that exists at all stages of the judicial or administrative
process.  In light of these Wawa ads, this critical criterion has surely
been satisfied.  Rule 1972 of the Pa.R.A.P. has clearly not been
satisfied and, thus, the Petition to Quash this Appeal must be denied.
B. Dr. Sklaroff Asserts Many Fundamental Bases to Question the Sound
Discretion of the Trial Court

The CoP asserts that the Petition for Review, "like his numerous briefs
and motions filed in the Commonwealth Court and trial court, fails to
address the sole question raised by his Petition, namely whether the
trial court abused its discretion in finding that [Dr.] Sklaroff did not
have standing to intervene under Pa.R.C.P. 2327-2329 in the
Commonwealth's settlement of its lawsuit."  The irony, here, is that all
of the aforementioned courts and litigants have failed to refute the
factual assertions and necessary conclusions derived therefrom with
particular regard to the "standing" issue.  Thus, it is a manifest abuse
of discretion to ignore the fundamental question under consideration,
particularly when the stakes are so great and the implications so
profound.
Dr. Sklaroff detailed why he merits standing, both with regard to his
efforts above-and-beyond those reasonably anticipated to be generated by
the public at-large (citing, for example, his having been granted
standing to challenge the consolidation of PA Blue Shield and Blue Cross
of Western PA by Commonwealth Court on 3/27/97) and with regard to his
efforts to attain sound tobacco control (organizational and individual).
It is amazing that unrefuted assertions have not been accepted as
factual.
Dr. Sklaroff has refrained from attempting to assert his view of the
motives of the parties involved-beyond necessary analysis of specific
legal concerns such as the "offset" or the Biester exception-so he
cannot certify (as the CoP would demand) whether these errors were due
to "partiality, prejudice, bias, or ill-will."  They could be charitably
characterized as due to a "rush to judgment" by people who have allowed
themselves to be "mesmerized by millions" rather than weighing the
consequences.    Were he compelled to satisfy this charge, he could
correlate this conclusion with any or these four criteria (to varying
degrees), particularly recognizing the David-Goliath nature of a
conflict between a pro se litigant and the AG of the CoP.  Thus, this
post-settlement intervention would not be unduly prejudicial to the
parties and to the resolution of their litigation because the result of
said intervention is founded on the overt intent (articulated
repeatedly) to fix the defects in the MSA that rob people (such as
youth) of their rights.
Indeed, how anyone could issue blank-check indemnification for future
misdeeds (merely meeting the black-hole criterion that this occur in the
normal course of business) seems uncanny at best, and onerous to the
common person, and unabashedly evil to the antitobacco activist who can
perceive (and predict) future behavior manifest by this most evil of
Evil Empires.  Disease, disability, and death continue in its
wake-worldwide-not withstanding its newly unveiled "feel-good" PR
campaign.  This is not the ranting of an extremist; rather, this is the
conclusion of the World Health Organization that just started a Death
Clock as it attempts to alter the global culture that protects Big
Tobacco.
Amazingly, this section of the CoP's Brief concludes with the bald
assertion that Dr. Sklaroff "makes no pretense of satisfying the
requisites for intervention set forth in the rules of civil procedure."
Everything filed has been focused on this particular task.
C.      Dr. Sklaroff Has Not Misrepresented the MSA; the AG Has.
The AG argues that Dr. Sklaroff has filed a Petition that "is replete
with self-serving misrepresentations both as to the MSA and extraneous
matters."  It continues:  "One such fallacy is his claim that the MSA
extinguishes the rights of individuals such as smokers to bring
litigation against the tobacco industry."  This is an inaccurate quote.
What Dr. Sklaroff noted is that the specific exclusion of individual
litigation has not stopped PM from attempting to invoke an award related
thereto to be included within the "offset" provision.  What Dr. Sklaroff
noted is that the AG has been excruciatingly silent regarding this
issue, one that strikes at the heart of the immunity concerns that have
rendered the anti-tobacco community wary of the MSA and its ability to
be used by the TI as a tool to avoid responsibility for its misdeeds.
What Dr. Sklaroff noted is that the AG has been issuing contradictory
statements regarding the MSA's immunity provisions.
Rather than exhaustively recounting this issue, a few selected
quotations will be provided.  The following exchange occurred on January
12, 1999 between Judge Herron and Mr. Reeder Fox, representing the AG
[it has been provided in toto]:
THE COURT:              Do those orders contemplate this court approving the
attorney general's authority to compromise county claims?
MR. FOX:                Not at all, Your Honor.  What we always seem to lose sight of,
here, is that paragraph P.P. of the MSA which is the definition of
releasing parties, clearly and expressly states that "That release is
only applicable to the full extent of the power of the signatories
hereto to release past, present and future claims."

A month ago, the AG stated to a reporter from the Jewish Exponent that
there was no immunity in the MSA, failing to differentiate between the
governmental subunits and the public-interest litigants who might wish
to file anti-tobacco litigation.
And just last week, the CoP articulated a third perspective to a
reporter for the Philadelphia Inquirer, as referenced in the following
exchange:
"The tobacco industry is immunized," he [Dr. Sklaroff] said. The
settlement "has created an incestuous relationship between Big Tobacco
and Big Government."

Officials deny this, saying that only municipal and county lawsuits
would be affected.

        The greatest discomfiture regarding the behavior of both the AG and the
Governor that has arisen during recent months has been generated by
their endorsement of HB-445.  This legislation would indemnify the TI
[per Exhibit T in the MSA] without citing the customary disclaimer
referenced by Mr. Fox, thus establishing legislative intent to empower
the AG to give the global immunity to the TI that anti-tobacco activists
fear.
        Although the AG claims ignorance regarding the behavior of PM with
regard to the Wawa litigation filed by Dr. Sklaroff, it must be stated
that (predictably) this leader of the TI has attempted to claim immunity
from this litigation by invoking the MSA.  Thus, concerns that a public
interest lawsuit could be extinguished by inappropriate use of the MSA
are validated contemporaneous with the process of determining whether
the MSA is unconstitutional, ultra vires, and antithetical to the
interests (in particular) of youth.  Thus, in the absence of an
evidentiary hearing involving a public adjudicatory process attended by
adverse parties, no final determination regarding children's rights is
possible.
        In a footnote, the AG asserts the following:
Assuming, arguendo, [Dr.] Sklaroff did have standing to bring such a
[Wawa] lawsuit against PM, and that the lawsuit did state a valid cause
of action, that cause of action would be one that was entirely created
by the MSA, not adversely affected by it.  Without the MSA, there would
be no billboard ban and no basis to challenge the billboard advertising
of anyone.

        This point was also made by PM and has been refuted in the 11/22/99
filing with the Philadelphia Court of Common Pleas.  Dr. Sklaroff seeks
standing to address a tobacco-related matter that is specifically
encompassed by the MSA and that is specifically being ignored by the
AG.  Achieving that status would dramatically illustrate that the AG
should not be the only individual empowered to enforce the MSA.  Then,
having accomplished this end, it is difficult to deny the capacity of a
"private AG" (and/or an citizen/taxpayer functioning in other
capacities) to gain standing to address the facets of an agreement that
he/she has then been empowered to help enforce.  Therefore, the AG has
articulated a "distinction without a difference," behavior that is not
unique to lawyers, but behavior that should not be introduced at this
[late] date in the process.
D.      The Lone Dissent Provides Additional Legitimacy for Dr. Sklaroff's
Petition for Review

For the first time, the AG has tried to refute the Commonwealth Court
Opinion issued by Judge Kelley.  Detailed discussion thereof has been
provided and is dutifully referred to the Supreme Court for analysis.
Obviously, characterizing it as "erroneous" reflects a dismissive
attitude that has characterized the AG's behavior during this entire
process.  Dr. Sklaroff would have the Supreme Court honor it.  But no
review thereof  will occur if the Motion to Dismiss for Mootness is
upheld (as unjustifiable as it is), and the fundamental uncertainty
associated with the MSA will be left to future litigants, unnecessarily
taxing the judicial resources that are limited, valued, and central to
the fabric of modern society.  As the AG noted, "The dissent never
addressed the crucial issues on appeal."  Dr. Sklaroff would add that
the Majority Opinion didn't, either.  Thus, it is left to the Supreme
Court to rectify these matters.  It is a source of amazement that this
discussion ends with the false denial that this was a class action suit,
ignoring its text.
Ultimately, however, the Dissent concludes the MSA issue must be decided
in a fashion that is congruous with that of Dr. Sklaroff's intent.  The
Supreme Court must ensure this document-with inherent and palpable
ambiguities-is not rubber-stamped.

E. The Continued Appeal is Not Creating Significant Present Harm to the
Commonwealth and Its Citizens

As has been noted previously, the Governor has not yet issued his
budgetary recommendations regarding how the MSA funds would be spent.
Thus, legislatively, these monies would now be sitting in escrow were
the present appeal not extant.  Thus, administratively, there is nothing
to stop the CoP from implementing the public health oriented programs
promoted (unsuccessfully) by anti-tobacco activists for years.  Thus,
legally, it is this argument that is moot, not the Petition for Review.

V. CONCLUSION
For the reasons set forth above, Robert B. Sklaroff, MD respectfully
requests that this Court deny the Commonwealth's Motion to Dismiss and
grant Dr. Sklaroff's Petition for Review.
 

Respectfully Submitted,
 

________________
November 23, 1999