Subject:
             Update on Tobacco/Blues/Union
        Date:
             Tue, 21 Dec 1999 05:38:38 -0800
       From:
             "Robert B. Sklaroff, MD" <rsklaroff@home.com>
 Organization:
             @Home Network
 
 
 

Things aren't yet quiescent....

TOBACCO--

I sued the AG in Commonwealth Court for not having enforced the MSA.
This avenue was suggested in the Herron Opinion, so it will be pursued
without prejudicing the three other pending matters.  The Complaint--

http://sklaroff.globalink.org/globalink-complaint-AG-1999.html

--is rudimentary, in that it doesn't specify many customary averments
(standing, cause-of-action, damages) because I'm filing as a
"private-AG."  Thus, I didn't argue that I had been personally
aggrieved; I didn't allege that my health is endangered, or that my
son--Michael--saw the Wawa billboard and bought and smoked cigarettes in
reliance thereupon, or that my professional practice was injured, or
that I sustained injury as a taxpayer by citing any Biester elements.

I encompassed the AG's "duty to act" by citing my letter to him (of two
weeks ago) and how he covets the power to enforce the MSA (inasmuch as I
recognize I'm a non-party to the MSA).  Finally, I cited contradictory
data (the Wawa ads were a "manufactured sponsored promotion," but PM has
disavowed sponsoring them) to illustrate why the entire matter must be
investigated.

I'm told that bases for "Private-AG" activities exist in a number of
venues:  the PA Unfair Trade Practice and Consumer Protection Law
(UTPCPL) [73 P.S. sec 201, et seq], qui tam, RICO, and Biester.
Nevertheless, if ANYONE knows of pivotal CASES in which it has been
applied, please supply the data.

*

Today, I received a call from Aline Fairweather, Esquire.  She had her
tail between her legs, apologizing profusely and repeatedly for her
letter of Thursday-past.  Yes, she found my Reargument/Reconsideration
Motion (hidden somewhere in the files of Dechert/Price/Rhoads) and would
immediately write a letter to Judge Herron informing him of that fact.
No, she didn't FAX the letter to me (as she had to Judge Herron) because
"I didn't have your FAX number."  [It's on all my stationery and she
could have called my office for it, inasmuch as my number isn't
unlisted.]  She also requested (of me!) a one-month extension, after
which time she would file a response thereto.  I graciously complied, as
would anyone confronted with such a cordial "colleague-colleague"
dialogue.

Thus, pending the response from Judge Herron, it appears the Wawa case
will continue to reside in the Philly Court of Common Pleas while it is
simultaneously being initially processed at the PA Commonwealth Court
level.  I suppose I could have been obstinate, preferring to
freeze-in-place the current state of affairs (Wawa billboards being
removed while Sheetz billboards remaining), but (as detailed yesterday)
I feel the point (of the need for definitive enforcement due to
recidivism) has been effectively made.

Remember, Judge Herron wrote, regarding mootness:  "violations of the
MSA would be of great public importance," presumably due (at least) to
issues related to credibility/veracity.  This has occurred.  And he
wrote, regarding third-party standing:  (1)--[it] must be "appropriate
to effectuate the intention of the parties" and (2)--. . ."the
circumstances indicate that the promisee intends to give the beneficiary
the benefit of the promised performance."  As my son would say,
"Check!"

*

BLUES--

I also received a call from another attorney, requesting me to approve
an extension of time; this time, I wasn't so accommodating.  The lawyer
(Lynne E. Fitzwater, Esquire) represents the Insurance Department and
she wanted an extra fortnight to do everything, inasmuch as she's
crushed with work in January and she has a new boss.  I recalled that
she has filed a motion that would limit the admissibility of documents
to those dated prior to December 5, 1996, so I suggested that she didn't
really have much to review.  If, on the other hand, she were to withdraw
this motion and thereby add to her workload significantly, she would
merit the additional time.  She refused, so I refused.

I also had occasion to chat with another lawyer involved with these
proceedings--

http://members.home.net/rsklaroff/blues-FILINGS-ServiceList.html

--and we shared the sentiment that, perhaps, the time has come for the
petitioners to coordinate strategy more intensely.  How and when this
will become manifest is unclear, but input is invited.

UNION--

I called all 21 doctors who function as primary care physicians at JFK
to provide an update; I also called our attorney to find out the
detailed procedural plan.  Things are moving along briskly.

The model legislation--

http://members.home.net/rsklaroff/union-bill_text_12-99.html

--is consistent with my August critique--

http://members.home.net/rsklaroff/union-bill_analysis_8-99.html

--and corrects the errors promoted by the PA Medical Society.  We are
seeking sponsors....