IN THE COMMONWEALTH COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, :
By JOSH SHAPIRO, :
Attorney General, et al.; :
:
Petitioners, :
v. : No. 334 M.D. 2014
:
UPMC, A Nonprofit Corp., et al.; :
:
Respondents :

DENIAL OF APPLICATION FOR LEAVE TO INTERVENE

[Application for Reconsideration of an Order of a Single Judge]

_______________________________________________________________________________ ______

Introduction

This Motion/Brief to Reconsider Denial of the Application for Leave to Intervene is filed

in a timely fashion, after having taken into account [1]—recollections of the Hearing;

[2]—the subsequent Order; and [3]—filings regarding this issue in Federal Court.

The criteria applied are not only [1]—Abuse of Discretion; and [2]—Error of Law, but

also, [3]—Insufficient substantial evidence that may be supportive of the decision; and

[4]—Presence of a broad policy issue that may (assuredly) affect the public interest.

At the conclusion of the 3/7/2019 Hearing, the two stated-concerns were tethered to [1]—

insufficient legally enforceable interest; and [2]—the potential for undue delay from the

potential for the introduction of issues not germane to legal questions being considered.

The Order also cited [3]—the claim not being subordinated to the propriety of the action.
Applicant is a person unnamed as a respondent in the original jurisdiction of this matter

and, thus, an Application for Relief was filed [see P.R.A.P. 123], inasmuch as more than

30 days had elapsed since the case had been initiated [see P.R.A.P. 1531]. It is with an

abundance of caution that redundancy between the Application and this filing exists,

lest some essential pleading inadvertently be absent; this included a succinct summary

of the salient features of documents that were accrued starting a quarter-century ago and

that directly impacted the COMMONWEALTH’S PETITION TO MODIFY CONSENT DECREES.

Explicitly recognized were the two motivations that were channeled therein, namely,

maintaining both quality-of-care and competition. Two criteria were prophylactically

noted in the filing that were confirmed not to be germane, noting that neither was raised

either by the Parties or by the Court: [1]—Prior experience in this litigation-thread had

yielded recognition that this Application needn’t have been filed earlier to be honored

subsequently; and [2]—It was noted that there is no statute that precludes its being upheld

[see No. 1215 CD 2006 & MS96-04-098, inter alia]. Therefore, after having resigned as

a Highmark provider to preclude any conflict-of-interest claim [2/19/2019, documented],

it was averred that Applicant was/is in a unique position to address the gravamen of this

controversy: The aim was/is to uphold the Social Mission that had been inherent while

having been a corporate-member of Pennsylvania Blue Shield {“PBS”} with regard to

its successor-entity Highmark, after the unsuccessfully challenged consolidation with

Blue Cross of Western Pennsylvania {“BCWP”}. [Applicant is a Medicare recipient and,

thus, has neither Highmark/UPMC insurance, either as primary/secondary coverage; thus,

Applicant is situated among the “publics” of “insured” and “provider” communities.]

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This filing recapitulates the information initially filed that appeared not to be challenged,

prior to distilling/addressing/refuting the Court’s rationale for rejecting the Application.

Prior-Assertions – Recapitulated Rejoinders

These specific facts animated efforts to preclude the consolidation that yielded Highmark,

via litigation that had extended for more than a decade—terminating a decade ago—

noting that Highmark never stated any on-point precedent supportive of opposition:

1. Commonwealth Court initially granted Standing [3/27/1997] because

initial petitioners [including Applicant, noting that others dematerialized due to attrition]

had a direct, substantial and immediate interest in the Consolidation of PBS/BCWP

ascribable to presence on the PBS Corporate Board, undenied/controlling in that case

and in this case. This assertion constitutes the core-fact upon which Applicant relies.

2. This parameter positioned Applicant “above the general public” to justify

being granted Standing, unchallenged for the subsequent decade; thus, it was/is desirable

to recall arguments Highmark had raised—but were not sustained—previously, to wit:

First, it averred “The Challenger must show that its interests fall within the zone

of interests sought to be protected by the statute.” Highmark claimed that Applicant falls

“within the zone of interests sought to be protected by the statute or constitutional

guarantee in question. Stated alternatively, in order for Applicant to have Standing to

enforce the provisions of the Health Plan Corporations Act {“HPCA”} [e.g., under

Article A, Part III, 40 P.S. §§6101 et seq.] or Article XIV, these statutory schemes must

provide for the participation and protection of policyholders, subscribers, and/or former

corporate members of PBS.” Applicant did, and Highmark never asserted to the contrary.

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 Second, it averred Applicant lacked “Standing to challenge the Commissioner’s

determination below with respect to the status of Highmark’s authority to operate both a

hospital plan and a professional health service plan under the HPCA” because “nothing in

the HPCA provides for a private right of action [and] there is no provision in the HPCA

that requires the [Insurance] Department to consider the interests of a particular

applicant’s subscribers, policyholders, or corporate members in its decision whether to

issue a Certificate of Authority.” Yet, no-where was there any assertion that undermined

the established decision that Applicant, as a prior PBS-Corporate Member, had Standing

in this prior case to address any/all decisions made by the Commissioner/Court.

Third, it averred Applicant lacked Standing “to challenge the Commissioner [sic]

approval of the proposed bylaws for Highmark under the HPCA” because (a)—

physicians were not intended by the General Assembly to have control over PBS and

(b)—the Commissioner was statutorily obliged to approve the Bylaws anyway. Yet, no-

where in was there any assertion that not counting “physicians” also as “subscribers”

(when defining membership on the PBS Board) carried any empowerment implications

(beyond, simply, ensuring that the non-physician component was 50+ %); also, no-where

was there any assertion that Highmark’s narrow view of what the Commissioner’s role

had been (regarding approval of Highmark’s Bylaws) has been yet validated (for it was

subject to myriad challenges as per the Preliminary Brief appended to the initial Petition).

{Efforts to define how the PBS Board has been constituted didn’t rise to the level

of rejecting the import of physicians participating in PBS [see 12/19-20/2002 hearings].

Applicant didn’t view the Bylaws as a rubber-stamp document, ignoring the prior PBS

culture; rather, governance of a successor must subsume key elements of a predecessor.}

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 Fourth, it averred Applicant lacked Standing “to challenge the Commissioner’s

decision that the Form A filings did not violate the competitive standard under Article

XIV” because (a)—Article XIV does not confer a private right of action in this case; and

(b)—the Commissioner was statutorily obliged to approve the Consolidation anyway.

Yet [as was the case supra regarding both of these arguments], no-where was there any

assertion that undermined the established decision that Applicant, as a prior PBS-

Corporate Member, had Standing in this case to address any/all decisions made by the

Commissioner/Court; also, no-where was there any assertion that Highmark’s narrow

view of what the Commissioner’s role had been (as to whether creation of Highmark

would be anticompetitive, recalling how she had broadly defined the region/service) had

been validated (for it was subject to myriad challenges as per the Preliminary Brief

appended to the initial Petition). {Note that Standing yielded unlimited overview.}

Therefore, previously, in a case that ultimately yielded the creation of Highmark

[despite its having created arguably a monopoly/monopsony, as arguably has transpired],

no argument survives that would preclude Applicant’s attaining Standing necessary/

sufficient to address this proposed modification of Consent Decrees intimately involving

Highmark. Indeed, there was/is no effort to rebut settled “law of this case” in the initial

(unpublished) opinion, so there is no need to rebut what Highmark hasn’t even asserted.

Prior-Assertions – Recapitulated Claims

3. Along with this prior retroactive assessment, it is desirable to recapitulate

the positive-assertive rationale for Applicant’s gaining Standing in this case; many of

these points were raised during terse oral-argument but, nevertheless, merit restatement:

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 First, Applicant harbors an “institutional memory” of what has occurred over the

decades, such as a finding by Mr. Donahue [which had been solicited by leaders of the

Philadelphia County Medical Society, including Applicant] advising BCWP should have

been split-up BEFORE being consolidated with PBS; in light of the litigation history

regarding the creation of Highmark, it seems no other physician who had been a PBS

Corporate member has the capacity and/or track-record to satisfy/lead this responsibility.

Second, Applicant concurs with goals of the Attorney General {“AG”} that it is

“necessary to maintain the Consent Decrees’ principles to protect and promote the public

interest through enforcing the respondents’ charitable missions by: enabling open and

affordable access to the respondents’ health care services and products through

negotiated contracts; requiring last best offer arbitration when contract negotiations fail;

and ensuring against the respondents’ unjust enrichment by prohibiting excessive and

unreasonable charges and billing practices inconsistent with the respondents’ status as

public charities providing medically necessary health care services to the public.”

[https://www.attorneygeneral.gov/wp-content/uploads/2019/02/UPMC-filing.pdf] These

are applicable BOTH to UPMC and to Highmark [plus their subsidiary entities], for they

are derivative of charitable motives that are identical to the Social Mission of Highmark’s

predecessor entity, PBS, that Applicant continues to intend to uphold assiduously.

Therefore, currently, the commonweal will benefit were the Applicant to reapply

principles that Applicant articulated in prior submissions focused upon the physician’s

duty to advocate for optimal patient-care without compromising access/cost parameters,

notwithstanding the AG’s assertions and/or Highmark’s already-refuted claims; applying

these concepts would yield independent due-diligence assessment of the database/filings.

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 4. Within these contexts, determining whether Highmark [plus its controlled

affiliate, West Penn Allegheny] complied with the prior Consent Decrees—would clarify

dynamics of the functional dichotomy between Highmark/AG and UPMC (noting the

latter’s federal court case in which Applicant is also seeking to acquire Standing); indeed,

focus is less trained upon a retrospective “he said, she said” than on what may emerge

from interactions of the Parties as to the healthcare available to the public [vide infra].

5. {Absent Standing, federal case cites have been drawn from the version

accessed via the Internet [https://s3.amazonaws.com/assets.fiercemarkets.net/public/004-

Healthcare/(4)+UPMC's+Complaint+Federal+District+Court+++2+21+19.pdf]; each of

the components/claims/goals stated herein can be elucidated orally and/or in-writing.}

Current-Assertions – Highmark

6. It is claimed that Applicant had not established Standing due to absence of

having “any direct, substantial or legal interest in this action that is any different than the

public interest which the AG is seeking to protect.” Ignored was unchanged-persistent,

decade-plus, established-interest enjoyed/unencumbered through Consolidation process,

which is identical to that which is asserted in the instant case, to wit, the Social Mission.

6. It is claimed that Applicant’s interest doesn’t differ from any public harm,

again ignoring the established Standing that others lack, to wit, Standing in the prior case;

such Standing can’t be stripped after a corporate reorganization (such as a consolidation),

noting that a patent-holder was granted Standing to sue because statutory law permitted

an eliminated entity (in this case, chain of ownership following a merger) to survive for

purposes of transferring its property rights into the newly formed entity [Tri-Star

Electronics Int’l, Inc. v. Preci-Dip Durtal SA, No. 2009-1337 (Fed. Cir. Sept. 9, 2010)].

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 7. It is claimed that Applicant was not able to attain Standing to intervene

when challenging the Master Settlement Agreement between tobacco companies and

governmental entities because an intellectual interest didn’t suffice; to the contrary,

Standing was denied due to the absence—when the case was filed, albeit not thereafter

(when the MSA was defied)—of a “case/controversy ripe for adjudication at this time.”

8. It is claimed that a prior relationship with Highmark would not suffice

when seeking Standing by citing a case in which an Alumni Association lacked Standing

to seek the rescinding of an agreement between the AG and its school trust [In re Milton

Hershey, 911 A.2d at 1262]; this case is inapposite, inasmuch as the Alumni Association

had never previously been granted Standing in any prior litigation involving the school.

9. It is claimed that the AG adequately represents Applicant’s interests

because of Applicant’s alleged admission that the AG’s assertion is “derivative of

charitable motives that are identical to” interests Applicant seeks to represent [emphasis

by Highmark]; this misapprehension ignores the fact that, although MOTIVES are not

known to be distinguishable, the MANIFESTATIONS thereof are predictably disparate.

10. It is claimed that the AG adequately represented public officials seeking

Standing [In re Philadelphia, 872 A2d at 261 (citing Wiegand, 97 A2d at 82)]; again,

none of these individuals had previously acquired Standing in any prior relevant lawsuit.

11. It is claimed that granting Applicant Standing could trigger the filing of a

torrent of similar applications from others who would generate undue complication/delay

(“scores of doctors, healthcare subscribers and other members of the general public”);

none of the aforementioned individuals have the capacity to claim the Applicant’s status

(vide supra) in this overt effort to undermine the AG’s capacity to speak in “one voice.”

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 Current-Assertions – AG

12. It is claimed that Applicant [1]—was denied Standing to participate in the

Consolidation; [2]—was involved in Consolidation proceedings that do not involve the

same facts and matters currently before this Court; and [3]—lacks “a direct, immediate

and substantial interest beyond that of the general public sufficient to support his

Standing to participate in this matter” because there is no discernable adverse effect;

to the contrary, the identical “Social Mission” motivation that animated involvement

within the Consolidation approval process involves the same manifestations thereof that

would involve the competition/pricing issues that are currently before the Court (as were

routinely assessed by committees of the Corporate Members and at the Annual Meeting).

13. Indeed, specifically in this counter-statement of these assertions, are the

facts that Applicant [1]—was NOT denied Standing to participate in the Consolidation;

[2]—was involved in Consolidation proceedings that DID involve the same facts and

matters currently before this Court; and [3]—HAS “a direct, immediate and substantial

interest beyond that of the general public sufficient to support his Standing to participate

in this matter” because of the alleged PRESENCE of discernable/potential adverse effect.

14. It is claimed that due-diligence assessment of all assertions (including the

alleged violations of Highmark of its Consent Decree) is not desirable in this setting;

contrariwise, it is anticipated that both Highmark and UPMC will be issuing claims and

counter-claims as presaged by [1]—issuance of a temporary Protective Order prohibiting

the deposition of Executive Deputy Attorney General James A. Donahue, III on 3/8/2019,

and [2]—issuance of the AG’s first set of requests to UPMC for document production.

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 15. It is claimed that no further disinterested assessment is needed regarding

UPMC’s rejection of the proposed modifications because of the existence of the filing of

UPMC’s “Answer in the Nature of a Motion to Dismiss or Preliminary Objections”;

contrariwise, although this document has not been provided for review, it would benefit

the public were the Court provided input derived both from Applicant’s knowledge,

training and experience and from others he’d contact (e.g., PBS-physicians and patients).

16. It is claimed that granting Applicant Standing is not justified because of

the lack of special interest[s] when assessing the need for UPMC/Highmark to discharge

their respective charitable missions faithfully; to the contrary, Applicant has the capacity

to provide oversight as to how the PBS Social Mission continues to be manifest (at least

regarding Highmark and, to whatever degree there is an overlapping concern, UPMC).

17. It is “ADMITTED that the Social Mission of PBS has been subsumed by

Highmark which … has already consented to the proposed modifications,” but it is

denied that “further input from unidentified physicians who purportedly upheld the Social

Mission of Pennsylvania Blue Cross [sic] is necessary in this case’; that Highmark has

subsumed the PBS Social Mission is dispositive regarding Applicant’s ability to achieve

Standing in the instant case, for the aforementioned Social Mission must be upheld and

prior disagreement between Highmark and Applicant undermines Highmark’s ability to

control how these principles are to be applied when updating/editing the Consent Decree.

18. Furthermore, it is irrelevant that Highmark has consented to the proposed

modifications because, presumably, they are being challenged by UPMC; therefore, it is

necessary to oversight this process to ensure Highmark maintains adherence to the key

manifestations of the Social Mission that now ADMITTEDLY are applicable via PBS.

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 19. It is claimed that Applicant is not authorized to “speak for or otherwise

represent the interests of the referenced by otherwise unidentified physicians or Mon

Valley healthcare entity that purportedly sought Standing to represent Medicaid patients

in the previous allegedly-unrelated proceedings; to the contrary, although Mon Valley has

not been contacted, one PBS corporate-member has conveyed support for this initiative

[e.g., on Fri, Feb 8, 2019, 6:03 AM Raymond Lodise <[email protected] wrote*:

“YOU were ahead of time. Thanks for the post and thanks to you for all that work and

money !!! I miss it all.”] and would be asked to provide routine input (Court-permitting).

Federal Court – PA Middle District Cases

20. As per Orders issued in this matter [3/8/2019 & 3/13/2019], briefing was

suspended regarding Applicant’s Motion for Permission to Intervene until the disposition

of the AG’s Motion to Dismiss has been determined; thus, the only method to determine

what additional criteria may be applied to a Standing Application is to show why five

prior opinions regarding Standing in that Court do not preclude that (and this) initiative

[https://www.pamd.uscourts.gov/search/node/intervene].

21. Three motions to intervene were filed in the “Intelligent Design” case

[4:04-cv-2688 Kitzmiller, et al. v. Dover Area School District], all of which were denied;

cited was the need to satisfy a four-part test: (1) timeliness; (2) existence of a sufficient

interest in the litigation; (3) potential for that interest to be operationally affected and/or

impaired by the disposition of the action; and (4) inadequate representation of that

interest by an existing party in the litigation. (“Permissive” approval was denied because

it was not felt they would add anything substantive to the adjudicative process.)

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 22. Parents (Mr./Mrs. Hied, Mr./Mrs. Mummert, and Mr./Mrs. Cashman)

claimed a “right of access to information/ideas in an academic setting” to preclude Dover

from shielding “ninth graders from all criticism of the theory of biological evolution.” In

this instance, (1) It had been filed on a “timely” basis because it had been filed

approximately one month after the complaint was filed before extensive discovery had

been conducted; (2) Applicants lacked a “legal interest as distinguished from interests of

a general and indefinite character” and had not demonstrated a “tangible threat to a

legally cognizable interest”; (3) Applicants had not demonstrated that the “practicable

consequences of the litigation” could affect a “significant legal interest” they might

harbor; and (4) Applicants had not demonstrated that their interests were sufficiently

different from those of the litigants that such diversity would preclude receipt of proper

attention [https://www.pamd.uscourts.gov/sites/pamd/files/opinions/04v2688.pdf].

23. A non-profit corporation which publishes and owns intellectual property

rights of the textbook Of Pandas and People and the draft text of The Design of Life

(the Foundation for Thought and Ethics) failed all four of the aforementioned prongs and,

indeed, that acceptance would cause prejudice, delay, and expense to the existing Parties

[https://www.pamd.uscourts.gov/sites/pamd/files/opinions/04v2688a.pdf].

24. A surety entity (F&D) was denied the opportunity to intervene based upon

a F.R.C.P. 24(a)(2) that differs from that under which this Application has been filed;

neither “diversity” nor “supplemental jurisdiction” has been claimed in the instant case,

but it is noted that there is overlapping “subject matter jurisdiction” in that the instant

case involves a federal question: antitrust compliance affecting the social mission(s)

[https://www.pamd.uscourts.gov/sites/pamd/files/opinions/03v0833.pdf].

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 25. Court TV was denied (limited) Standing to televise the trial proceedings

because it had not demonstrated that its involvement would add anything to the litigation

[https://www.pamd.uscourts.gov/sites/pamd/files/opinions/04v2688c.pdf].

26. A stockholder (Hering) lost Standing due to chronological considerations

(having lost Standing after some claims were dismissed); thus, this case is not applicable

to the instant case [https://www.pamd.uscourts.gov/sites/pamd/files/opinions/15-cv-

2440memorder102418.pdf].

Federal Court – PA Middle District Precedent

27. Therefore, this Motion meets all four prongs of the test that yields the

“right” to acquire Standing.

28. This Motion is (1) “timely because it is being filed only a few days after

the case was filed/announced, noting that discovery is currently being initiated.

29. This Motion conveys (2) existence of a sufficient interest in the litigation

because its outcome could threaten a “legally cognizable interest” that is distinguishable

from both those of the litigants and anyone else who might harbor “interests of a general

and indefinite character”; Commonwealth Court recognized this status as having been

above/beyond that of both the general public and the government (Insurance regulator),

derivative of having served as a Corporate Member of Highmark’s predecessor, PBS.

30. This Motion conveys (3) potential for that interest to be operationally

affected and/or impaired by the disposition of the action because—notwithstanding any

view as to whether providers do or do not benefit economically—since 1939, physicians

have acted as patient-advocates when promoting PBS’s delivery of optimal medical care

(encompassing concerns as to the fruit of creative/healthy competition affecting access).

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 31. This Motion conveys (4) inadequate representation of that interest by an

existing party in the litigation, as illustrated by Applicant’s (ultimately solitary) efforts

in the decade-plus appellate process, explicitly in opposition to fervent assertions issued

by both Highmark and the Insurance Department; it is anticipated that adoption of a

disinterested posture will again occur (superimposing UPMC), just as occurred when

Applicant supported Highmark in its challenge to the legal entity representing the entity

he had been serving as President (the Pennsylvania Society of Internal Medicine).

Commonwealth Court – Hearing and Order

32. The Order cites alleged absence of a “legally enforceable interest which

would qualify him for intervention” [P.R.C.P. No. 2327(43)], despite Applicant’s having

repeatedly claimed said interest was derivative of prior Standing in the Consolidation;

this assertion has been ADMITTED by the AG and is dispositive.

33. The Order cites alleged absence of Applicant’s claim both recognizing the

propriety of the main proceeding and being in “subordination to the propriety of the

action” [P.R.C.P. No. 2329(1)], despite the fact that the Application explicitly quoted

key-concerns from the AG’s filing and invoked this phraseology to justify intervention

[see the Second subsection of ¶ 3, supra], neither adding to it nor deleting from it.

34. Yet, Applicant claims neither that the other Parties’ interests “are liable to

shift with the political winds” nor that it’s impossible to discern “whether or to what

extent their … claims … will vary from [those of] the Defendants”

[https://www.stepupforstudents.org/wp-content/uploads/2015/09/plaintiffs-response-to-

motion-to-intervene.pdf]; thus, this supposition is not supported by citing the Applicant

and, by information and belief, it is averred a regimented legal-approach is anticipated.

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 35. To the contrary, claims for which intervention is sought are ensconced

within each of the nine counts in the AG’s filing and within the prayer-for-relief

(elaboration upon request), for upholding PBS’s Social Mission (subsumed by post-con-

solidation Highmark, as explicitly acknowledged by the AG) entails ensuring access to

the provision of reasonably-priced high-quality care (and interaction of these forces).

36. The Order cites alleged adequacy of the AG’s representation [P.R.C.P.

No. 2329(2)], despite prior citation of the Applicant’s independent analyses of the claims

made in the Consolidation case by the Pennsylvania Society of Internal Medicine,

Highmark, and the Insurance Commissioner; there are no data to support this supposition.

37. The Judge orally claimed the provision of Standing would “unduly delay,

embarrass or prejudice the trial or the adjudication of the rights of the Parties” [P.R.C.P.

No. 2329(3)]; there are also no data to support this supposition, particularly when it is

recalled that Applicant’s request for a one-month delay in the hearing proceedings before

the Insurance Commissioner (due to the sudden withdrawal of an Expert) was denied.

38. Applicant envisions enhancing application of the AG’s stated-concerns

by applying to both Parties any mainstreamed input from the Mon[gahela] Valley

healthcare entity that had previously sought Standing to represent Medicaid patients.

39. The Judge orally claimed the provision of Standing would potentially

enhance confusion as evidenced by his recollection of having addressed the litigation

involving the Consolidation a decade ago; to the contrary, each of the issues raised in this

litigation had been derivative of the concerns raised by former Insurance Commissioner

Constance B. Foster (who had represented the consolidation challengers two decades

ago) and, thus, shouldn’t have proven vexing to him when composing a contrary Opinion.

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 40. The Judge orally claimed the terse summary of legal rejoinders provided

by Applicant were supportive of his preconception that granting Standing would yield

deviation from focus on legal concerns; to the contrary, it was necessary to refute/clarify

points made in the filed briefs (and to cite those that had been raised in a Federal Court

filing—which the Parties had been provided—noting inability to upload any PACFile

addendum just prior to the Hearing), while honoring the Judge’s stated-desire for brevity.

41. With all due respect to the Parties, it is desirable to channel input directly

from physicians who upheld the Social Mission of Highmark’s predecessor entity, PBS;

thus, after having been granted Standing, Applicant plans to exhume contact-information

(c/o complete paperwork retained in a basement filing-cabinet) as to all people/entities

who had demonstrated (in any way/shape/form) they had been invested in prior initiatives

to uphold the PBS’s Social Mission, its carefully-nurtured raison d’être since 1939.

Mutatis Mutandis

42. The ideal way to demonstrate the Applicant’s intent in the instant case is

to elucidate (albeit superficially) how Applicant would analyze contrasts between the

AG’s goals [see the Second portion of ¶ 3, supra] and UPMC’s rejoinder [see ¶ 5,

supra]; because the AG’s goals resonate, their application would invoke mutatis mutandis

[“comparing two or more cases/situations, making necessary alterations while not

affecting the main point at issue”], for “The Devil is in the [legal/operational] Details.”

43. The 1st & 3rd concepts (ensuring access and precluding undue enrichment)

are subjective; the 2nd concept (“last best offer arbitration”) was in the original

[https://www.attorneygeneral.gov/wp-content/uploads/2019/02/UPMC-filing.pdf] and is

realistic [https://www.mcall.com/news/mc-xpm-1991-10-20-2831218-story.html].

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 44. Yet, how such attractive goals would be applied is at-issue, noting the

litany of concerns in the UPMC compliant [see ¶ 29]; some proposals may undermine

free-market principles—let alone the federal antitrust issues they seem to engender—and

others may best be perceived as self-generated rather than government-imposed (noting

that, in the prior citation, the teachers were invited to elect whether to accept arbitration).

Summary

45. The generic criteria applied are [1]—Abuse of Discretion; [2]—Error of

Law; [3]—Insufficient substantial evidence that may support the decision; and [4]—

Presence of a broad policy issue that may affect the public interest. {These criteria are

employed by the Social Security Administration when reviewing disability case appeals.}

46. Abuse of Discretion was manifest when the Judge:

[a]—claimed Applicant was obtuse during the Hearing, despite the facts that he

refuted legal arguments raised in briefs filed by AG/Highmark and in

Federal Court precedent.

[b]—claimed Applicant had been obtuse when filing the original Highmark brief,

despite the fact that it had channeled arguments that had been originally

composed by former Insurance Commissioner Constance B. Foster.

47. Error of Law was manifest when the Judge:

[a]—ignored Commonwealth Court precedent that had explicitly granted

Applicant Standing (based on the Social Mission) in a case (Highmark

consolidation) that was admittedly (quoting the AG and citing patent-law

precedent) tethered to the instant matter.

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 [b]—ignored his responsibility to ensure the outcome of litigation regarding the

Consent Decree would result from the highest quality scrutiny, rather than

mandating that input would be delimited solely to the Parties; in this instance,

Applicant provides an available resource for independent assessment that would

reasonably be expected to optimize his ability to uphold whatever the Charitable

Missions [a.k.a. “Social Missions”] of the Parties would dictate be accomplished.

48. That there was insufficient substantial evidence to support the decision

was manifest when the Judge failed to cite a justification for his pre-ordained decision;

providing an Order that merely excerpted law from the P.R.C.P. absent any elaboration

(citing the Transcript generically by-reference) demeaned Applicant’s closing remarks,

to wit, that supplying rationale would be desirable due to the plan to file a prompt appeal.

49. A broad policy issue that may affect the public interest was ignored when

the Judge failed to acknowledge Applicant seeks to join in satisfying the goal that must

be assiduously maintained throughout these proceedings: ensuring charitable [social]

missions of both entities are being upheld—pursuant to enabling statues—and, thus,

will be upheld after updating what will govern healthcare delivery for subscribers.

50. This must be attained by ensuring provision of optimal quality-of-care

while scrutinizing inevitably intertwined criteria of competition/access/cost; Highmark

subsumed the PBS’s Social Mission when the Consolidation was effectuated and, thus,

the Court must assess how Highmark and UPMC (to whatever degree they overlap)

have ensured delivery of cost-effective, high-quality, and easily-accessed healthcare.

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 51. Absent the Applicant’s input, neither the healthcare provider/insurer

Parties nor the AG can claim prospectively the ability to satisfy comprehensively this

imprimatur throughout the current proceedings for, recalling the Highmark consolidation

experience, each entity’s assertions must be viewed both within the broader context of

definable goals and in isolation therefrom; one can draw upon “knowledge, training and

experience” when placing assertions into proper context, after which time conclusions

that fall within the four-corners of the Court’s charge can be narrowly generated.

52. The specific criteria applied (adopting prior assertions by-reference as if

restated herein) are bare judicial claims (absent facts/rationale) that Applicant proffers

[1]—an insufficient legally enforceable interest; [2]—the potential for undue delay from

the potential for the introduction of issues not germane to legal questions being

considered; and [3]—a claim that is not in subordination to the propriety of the action.

53. Presence of Sufficient legally enforceable interest was ignored when the

Judge ignored Commonwealth Court precedent that had explicitly granted Applicant

Standing (based on the Social Mission) in a case (Highmark consolidation) that was

admittedly (quoting the AG and citing patent-precedent) tethered to the instant matter.

54. That there was no potential for undue delay ascribable to the possibility

that Applicant would introduce issues not germane to legal questions being considered

was manifest when the Judge can not contradict Applicant’s claim that, throughout the

entire Highmark consolidation-approval process, Applicant did not introduce issues that

were not germane to the legal questions being considered, thereby causing undue delay.

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 55. That Applicant’s claim is in subordination to the propriety of the action

was manifest when Applicant conveyed intent to assess how the attractive AG’s goals

[see the Second subsection of ¶ 3, supra] might be applied [see ¶ 29, UPMC filing],

particularly noting that the AG apparently aspires to apply them to additional

insurers/providers [see ¶ 32, UPMC filing]; thus, it is projected that there is plenty of

“grist” to be assessed from the focused-perspective of maintaining the Social Mission.

56. Indeed, the AG’s filing carries a potentially profound import/impact on the

loco-regional healthcare geographic/service environment and its extension eastward

across the Commonwealth [see ¶¶ 12-14, et seq.]; this illustrates why disinterested

assessment of reasons why UPMC rejected [see ¶ 81] the AG’s proposed modifications

[see ¶ 75] must precede any adjudication, easily ensuring the outcome of such analysis

falls within the four corners of what the AG alleged [in particular, vide supra ¶¶ 42-44].

57. Review of the Docket Sheets yielded a greater appreciation as to the major

force-at-play extant in this matter; this Intervention effort was initiated prior to the new

deadline for future applications [3/26/2019] and, thus, cannot be rejected on that basis.

58. It is also recognized that an expedited briefing schedule has been imposed;

again, nothing in the prior filing would preclude Applicant’s participation therein.

59. Review of the PA Supreme Court Opinion revealed reversal of a prior

Commonwealth Court Order and, thus, that a pivotal deadline looms (6/30/2019)

[https://law.justia.com/cases/pennsylvania/supreme-court/2018/5-map-2018.html]; also,

analysis therein confirms the above discussion of the far-reaching import of this matter

and, indeed, that the risk of future reversals may be minimized by maximal input that

may be provided both via briefing and at the upcoming non-jury trial (5/29/2019).

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 Conclusion

To summarize, two healthcare Parties (Highmark/UPMC) and the AG profess

assertions/claims (both herein and in filings within Federal Court) that are predicated on

intent to uphold their perceptions of the Parties’ Social Missions, based upon their non-

profit, charitable statuses; applying the PBS’s Social Mission in a disinterested fashion

would provide necessary oversight/input that would optimize outcome, particularly

noting how these entities are increasingly functioning statewide and how the AG would

invoke this precedent if/when assessing other provider/insurer contractual mechanisms.

THEREFORE, noting BOTH how the reasons for granting Standing have been

articulated AND how previous arguments for denying Standing have been refuted, it is

respectfully requested that Standing be granted while the Consent Decree is reviewed.

Respectfully submitted,

Robert B. Sklaroff, M.D.

Robert B. Sklaroff, M.D., Pro Se

March 19, 2019

8001 Roosevelt Boulevard, Suite #500C

Philadelphia, Pennsylvania 19152-3041
215-333-4900
[email protected]

{* - Regarding ¶ 19, supra, Dr. Sklaroff attests to the accuracy—under penalty of law—
of the unsolicited quotation from the e-mail remitted by Raymond J. Lodise, M.D.}

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 CERTIFICATE OF SERVICE

I hereby certify that I am this 19th day of March, 2019, serving a true and correct copy of
the foregoing
DENIAL OF APPLICATION FOR LEAVE TO INTERVENE
[Application for Reconsideration of an Order of a Single Judge]
on all parties via electronic mail as indicated below:

Stephen A. Cozen, Esquire

COZEN O’CONNOR
(Counsel for UPMC)
[email protected]

Leon F. DeJulius, Jr., Esquire

(Counsel for UPMC)
JONES DAY
[email protected]

W. Thomas McGough, Jr., Esquire

UPMC
[email protected]

Daniel I. Booker, Esquire

REED SMITH
(Counsel for Highmark)
[email protected]

Thomas L. Vankirk, Esquire

HIGHMARK
[email protected]

Kenneth L. Joel
Deputy General Counsel
PA OFFICE OF GENERAL COUNSEL
[email protected]

Victoria S. Madden
Deputy General Counsel
PA OFFICE OF GENERAL COUNSEL
[email protected]

Amy Daubert
Chief Counsel
PA Department of Insurance
[email protected]

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 Yvette Kostelec
Chief Counsel
PA Department of Health
[email protected]

James A. Donahue, III

Executive Deputy Attorney General
Public Protection Division
[email protected]

Mark A. Pacella
Chief Deputy Attorney General
Charitable Trusts and Organizations Section
[email protected]

Tracy W. Wertz
Chief Deputy Attorney General
Antitrust Section
[email protected]

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