Robert B. Sklaroff, M.D.
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Motion

___________________________________________________________________________

MOTION REGARDING REPLY TO BRIEFS IN OPPOSITION TO

PERFECTED PETITION FOR ALLOWANCE OF APPEAL

OF APPELLANT ROBERT B. SKLAROFF, M.D.

IN SUPPORT OF APPEAL FROM THE COMMONWEALTH COURT ORDER OF DECEMBER 28, 2007, WHICH UPHELD

THE MAY 26, 2006 ADJUDICATION AND ORDER

OF THE INSURANCE COMMISSIONER M. DIANE KOKEN DISMISSING THE CHALLENGE OF ROBERT B. SKLAROFF, M.D.

TO INSURANCE COMMISSIONER LINDA S. KAISER’S NOVEMBER 27, 1996

DECISION AND ORDER

______________________________________________________________________________

Robert B. Sklaroff, MD

Pro Se

50 East Township Line Road, Suite #130

Elkins Park, Pennsylvania  19127-2253

215-663-8200

1.         This physician filed 15-page a Reply Brief to Answers to his Petition-for-Review (by both the Insurance Department and Highmark), which was time-stamped on March 25, 2008.

2.         The Office of the Prothonotary cited the need to seek permission to file this document, pursuant to P.R.A.P. 2501(a) and 123, for “This matter is currently before the Court.”

3.         P.R.A.P. 2501(a) mandates filing an application, and P.R.A.P. 123 mandates that the specific grounds for filing this document be articulated (including citation of relevant rules).

4.         P.R.A.P. 1122 states, “If an appeal is allowed…the Prothonotary of the appellate court below…shall forthwith transmit the record to the Prothonotary of the Supreme Court”; therefore, supporting documents regarding issues raised in the Petition are not yet available.

5.         P.R.C.P. 1017 states, “Except as provided by Rule 1041.1 [Asbestos Litigation, Special Provisions], the pleadings in an action are limited to a complaint, an answer thereto,       a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto.” 

6.         Therefore, the key-concern is whether the Reply comports with the requirement that the answer (from either respondent) contained a “new matter” requiring clarification.

7.         Within the 15-page limitation for such documents [see Rule 2135(2)], every effort was made to focus upon that precise criterion when composing the Reply, as is detailed herein.

8.         The “STANDARD OF REVIEW” section addressed (new) specific claims (raised by Highmark) that the Petition had violated this Court’s Internal Operating Procedures;   in the process, it was noted that the Petition had comported with the dual-requirements that it be concise and comprehensive, placing sub-questions within the context of core-concerns.

9.         The “STATEMENT OF QUESTIONS INVOLVED” section addressed (new) specific claims (raised by the Respondents) that this physician lacked standing to address the issues raised by Capital Blue Cross; in the process, it was noted that the Petition had raised issues which had unique currency (a criterion that had been left unchallenged by the Respondents).

10.       The “STATEMENT OF CASE” section addressed (new) specific claims (raised by Highmark) that the Petition “had been ‘incomprehensible’ and had ‘recycled’ arguments without refining them”; in the process, the methodology of citing filings by Capital Blue Cross was exhaustively recounted (balancing the prospectively-articulated needs both to provide vital elaborative information and to acknowledge the source of said phraseology, at the specific behest of an attorney representing Capital Blue Cross who—otherwise—claimed theft-of-legal-work).

11.       The “STATEMENT OF CASE” section also addressed (new) specific claims (raised by Highmark) that “disqualification proceedings relating to substitute council for certain Opponents [included] Dr. Sklaroff”; in the process, it was noted (contrariwise) that this physician (a)—had been so critical of PSIM’s involvement with EBG that (after failure of internal-persuasion effort) this ethical concern had first prompted him to seek (and to attain) pro se status and, (b)—had “supported the Department and Highmark in subsequent filings, in this regard.”

12.       The “STATEMENT OF CASE” section also addressed (new) specific claims (raised by Highmark) that dilatory facets of this case were ascribable to actions “by Dr. Sklaroff and the other Opponents”; in the process, it was noted that multi-year delays were ascribable to the Insurance Department (including, in particular, that yawning gap between 2002 and 2006).

13.       The “STATEMENT OF CASE” section also addressed (new) specific claims (raised by Highmark)both  that efforts to enlarge the scope of the administrative proceeding had been “improper” and that concerted effort to seek formal “discovery” had been unauthorized;     in the process, it was noted that “the Department had retreated from its initial filing [regarding the “consolidation”]…and the Presiding Officer had arbitrarily limited discovery efforts.”

14.       The “STATEMENT OF CASE” section also addressed (new) specific claims (raised by Highmark) that mis-characterized the Record that had been before the Commissioner; in the process, it was noted that this physician’s submissions had been excluded from the Record that the Commissioner had later revealed as having served as the basis for her initial decision, that this physician’s discovery requests had not been honored, and that “encyclopedic renditions of these facts” had been included in prior filings (in the record below), “most profoundly the patter of excluded categories of discovery requests, without specific rationale being articulated.”

15.       The “STATEMENT OF CASE” section also addressed (new) specific claims (raised by Highmark)  that KHP-West had been “Already Affiliated”; in the process, it was noted that such issues (scattered in its filing) had “been preserved for this Court’s review.”

16.       The “SUMMARY OF ARGUMENT” section also addressed (new) specific claims (raised by Highmark) that this physician lacked “requisite ‘standing’ to bring the CBC-case before this Court” (an opportunity raised subsequently by this Court’s Prothonotary Office);  in the process, it was noted that the instant case had raised chronic, unique and ripe issues which “carry profound implications regarding the responsibilities of those purporting to provide administrative oversight of matters that necessitate regulation of a given industry.”

17.       The “ARGUMENT” section also addressed (new) specific claims (raised by Highmark) that the burden-of-proof rested upon this physician by inter alia citing a case         [La Farge] that had been prophylactically-discussed (as being inapplicable) and by citing cases [Mill Creek and Pa. Game Commission) that had not been “predicated on procedural deviations from statute”; in the process, it was noted that “a proper approval hearing has never transpired.”

18.       The “ARGUMENT” section also addressed (new) specific claims (raised by Highmark) that the jurisdiction over the Consolidation had not rested upon the Commissioner because of “a ‘broad and general exemption’ from insurance laws”; in the process, it was noted that oversight was needed regarding “the process of approval of the Consolidation (…by PBS).”

            19.       The “ARGUMENT” section also addressed (new) specific claims (raised by Highmark) that the dual-certification had been justified; in the process, it was noted that conjuring a favored view of legislative intent (via elimination of five words) involved sophistry.

20.       The “ARGUMENT” section also addressed (new) specific claims (raised by the Respondents) that Highmark had legally inherited its Certificates of Authority; in the process, it was noted that one particular case [Knecht] was pivotal in undermining both of the arguments that had arisen (including, in particular, the claim that stature precluded “cessation of operation of a Blue Plan under an existing Certificate of Authority short of dissolution or liquidation”).

21.       The “ARGUMENT” section also addressed (new) specific claims (raised by the Department) that it had properly excluded key antitrust concerns; in the process, it was noted that disallowing the ability to provide a replacement for the suddenly-absent Economic Expert constituted abuse of discretion that had contradicted a prior order (favorable to the Department).

22.       The “ARGUMENT” section also addressed (new) specific claims (raised by the Respondents) that the Presiding Officer had inappropriately precluded this physician from optimizing his testimony; in the process, it was noted that “Space limitations again preclude providing a comprehensive review of all the aberrations” related to his procedural decisions.

23.       The “ARGUMENT” section also addressed (new) specific claims (raised by the Respondents) that the traditional PBS Social Mission had been compromised; in the process,       it was noted that statutory compliance in other realms evaded this central concern. 

24.       The “ARGUMENT” section also addressed (new) specific claims (raised by the Respondents) that the Highmark witness had proved the antitrust violation; in the process,       it was noted that her geographic/service observations had been inappropriately “transmuted.” 

25.       The “ARGUMENT” section also addressed (new) specific claims (raised by the Respondents) that the Highmark witness had proved the antitrust violation; in the process,       it was noted unambiguously that BCWP’s control over KHPW had previously been shared and, thus, that KHPW could not be viewed statutorily as having been “already affiliated.”

26.       The “ARGUMENT” section also addressed (new) specific claims (raised by Highmark) that the Commissioner’s 5/26/2006 Order was not profoundly defective; in the process, it was noted that “the enormity of the task” justified everything done by the Department.

27.       The “ARGUMENT” section also addressed (new) specific claims (raised by Highmark) that the Commissioner did not perform antitrust analysis with due diligence; in the process, it was noted that attacking how Capital Blue Cross’s input had been presented did not preclude the necessity to confront the veracity thereof (which the Respondents never did).

28.       The “ARGUMENT” section also addressed (new) specific claims (raised by Highmark) that Capital Blue Cross should have standing to raise its concerns; in the process, it was noted that it was the “law of the case” that this issue could be referred to the Department for generation of an appropriate record and, thereafter, a decision regarding its correct status.

29.       The “SUMMARY” section also addressed (new) specific claims (raised by the Respondents) that this physician had failed to “perfect” the Petition, despite having been afforded a “second bite of the apple”; in the process, it was noted that they would have objected had any substantive change been made (beyond absorbing the CBC-input into the text). 

30.       Thus, pursuant to P.R.A.P. 123 and P.R.C.P. 1017, it is respectfully requested that this Honorable Court accept the filing of this physician’s 3/25/2008 Reply Brief.

Respectfully submitted,

___________________

                                                            Robert B. Sklaroff, MD,

                                                            Pro Se

                                                            March 31 2008

To contact me--Robert B. Sklaroff, M.D.--just send an e-mail (rsklaroff@comcast.net).