Robert B. Sklaroff, M.D.
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Reply Brief

___________________________________________________________________________

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

I.          STANDARD OF REVIEW

The filing correctly stated:  “The Standard of Review includes procedural aberrations (e.g., arbitrary rejections of discovery requests) and erroneous legal interpretations (e.g., classifying a subsidiary as an “already affiliated” entity, immune from antitrust analysis).”  Therefore, inasmuch as Highmark admitted {page 14} that this “fifth ground” for an appeal had been properly cited and inasmuch as the rest of the filing documents examples thereof, this filing comported with this Court’s Internal Operating Procedures [210 Pa. Code § 63.5].  Similarly, because the previously-filed “Summary of Argument stated the issues subject to this appeal with “brevity/clarity” (noting inter alia “the terse statements of conceptual issues” contained therein), there is no basis to argue that this filing violates P.R.A.P. 1115(a)(5).   Curiously, Highmark tries to “have it both ways,” when it also claims that the filing had not contained necessary arguments; indeed, it was sometimes necessary to depend upon restatements of section sub-headings due to page-limitations (anticipating that prior filings in the record could be invoked as supplements).  And Highmark has failed even to attempt to refute the contents of the myriad methods employed (both in formal arguments and in elaborative footnotes) to illustrate (and dramatize, if possible) the “special and important reasons” for this appeal, thereby complying with P.R.A.P. 1101.  Also, as had been noted, Commonwealth Court “so far departed from accepted judicial practices or so abused its discretion as to call for the exercise of this Court’s supervisory authority,” particularly when it is noted that this Court has yet to have had the opportunity to review the  initial 1997 Transfer Order (from Commonwealth Court to the Department).  These issues were carefully tracked and graphically-emphasized (bold-underlined) in an effort to encompass both “sub-questions [related to initially-articulated, in 1996] core-concerns…and the subsequent-concerns [that had] accumulated—to a significant degree—while the former [had] festered.”

II.        STATEMENT OF QUESTIONS INVOLVED [all to be answered “yes”]

These questions were articulated in stand-alone language, concisely capturing each issue.  They were also placed into a narrative context in the conclusion, even noting that current efforts to consolidate Highmark and Independence Blue Cross have led to the filing of legislation that addresses each of the issues raised in this litigation; there can be no more profound illustration of the currency and profundity of this case that the fact that extensive hearings have been held during this past year regarding the identical monopolistic concerns that constitute the core of this litigation (which, not incidentally, physician members of the PBS Corporate body had predicted).  In short, the desire of the Blues to monopolize the Commonwealth can only reasonably be stalled if this Court opts to scrutinize the legal/procedural/factual underpinnings of this entire process.

Both Highmark and the Department have challenged the capacity of this physician to ask for inclusion of the revelatory CBC-component of this problem, within this appellate process.  Not withstanding the fact that its very existence proves certain facets of the veracity of the appeal (such as the intuitive fact that neither party in a 50-50 power-sharing arrangement is in “control”) and provides highly-welcome gravitas (offsetting efforts to impugn the episodic pro se status[1]), the arbitrary exclusion of CBC from these proceedings must, itself, be subject to judicial review.  Also, arguments suggesting key-issues were not properly preserved by this physician because “Dr. Sklaroff did not argue or brief Capital’s standing below and thereby waived the issue” fail because CBC had raised the (standing) issues below and, thus, satisfied appellate requirements.  Ardent efforts were made to advance no new arguments beyond those that had been proffered; this discipline extended to the “reprocessing” of the filing (to encompass the details of CBC’s antitrust argument, always ensuring they were cited within the previously-established structure).

III.       STATEMENT OF CASE

Highmark proffered a “Concise Counter-Statement of the Case” which merits annotation, if only to ensure that certain inherent (transparently prejudicial) ambiguities have been clarified.  Earlier, in its “Introduction,” it had claimed that prior filings had been “incomprehensible” and had “recycled” arguments without refining them.  To the contrary, the information conveyed had been reformulated as the briefing process had progressed, culminating in an extended-conclusion that had been used (prophylactically) to respond to points in a previous filing to this Court.[2]  Indeed, Highmark has accused Dr. Sklaroff of attempting “to co-opt arguments made by a non-appealing party below, which Dr. Sklaroff never made and preserved himself,” despite the fact that a painstaking-effort had been made (and prospectively “announced”) to ensure that CBC  had been properly credited (at the fervent behest of its lawyer-representative, it may be recalled) for the way it had fleshed-out issues that this physician had articulated (and previously briefed).

In any case, the following clarifications are provided to supplement the Highmark filing.  First, Dr. Sklaroff segregated himself from PSIM’s representation [Epstein Becker Green] after he had learned of its conflict-of-interest problem (not having vetted the fact that its New York office had represented Davis Vision, a PBS subsidiary, despite the fact that the D.C. Office was currently involved).  This resulted after rather-intense internal discussions based on the intent    to convince the PSIM of the error of its ways.  Thus, it is inaccurate to aver that the (successful) “disqualification proceedings relating to substitute council for certain Opponents [included]     Dr. Sklaroff,” because this physician immediately adopted an ongoing pro se status as a result (and, indeed, supported the Department and Highmark in subsequent filings, in this regard).

Second, the “numerous failed efforts by Dr. Sklaroff and the other Opponents to seek direct relief from the Commonwealth Court” never were (yet) subject to review by this Court and were often conducted in a fashion that was concurrent with proceedings within the Department, so it cannot be claimed that they had a dilatory effect upon what transpired.  Indeed, the major episodes of delay were tethered to the Department (see dates of myriad adjudications/orders), most gallingly the multi-year interval between the (2002) Hearings and the (2006) Final Order.

Third, efforts to enlarge the scope of the administrative proceeding cannot be portrayed as “improper,” nor can concerted effort to seek formal “discovery” be portrayed as unauthorized for, again, these issues are justifiably before this Court for final review (of whether they were proper or authorized).  As has often characterized the legal-posture adopted by the Respondents, denying the vital import of issues and sub-issues related to this effort simply doesn’t make it so.  Indeed, that the Department had retreated from its initial filing (averring it invited input as to the “Consolidation” in the Pennsylvania Bulletin) and the Presiding Officer had arbitrarily limited discovery efforts (numerically, inexplicably, chronologically), these issues are ripe for review.

Fourth, disputed are characterizations of the Record that was before the Commissioner, for this physician documented the fact that his submissions had been excluded from the Record that the Commissioner had later revealed as having served as the basis for her initial decision, and discovery requests (such as the contents of the PBS mailings to its Board) were not honored.  Again, encyclopedic renditions of these facts were included in prior filings, most profoundly the patter of excluded categories of discovery requests, without specific rationale being articulated.

Fifth, scattered throughout this rendition are citations of specific issues (such as whether KHP-West had been “Already Affiliated”) that have been preserved for this Court’s review (including the non sequitur that shared-ownership yielded exemption from antitrust analysis).

IV.       SUMMARY OF ARGUMENT

            Far from burdening this Court with stale arguments, this physician has consistently cited those of the Respondents in an effort to address core-concerns.  Contrariwise, Respondents’ arguments (particularly those proffered by the Department) restate prior decisions rather than address specific-concerns (which are then, for example, dismissively rejected as encompassed within the Commissioner’s discretion to adjudge the record as “sufficient” to justify a decision).  Thus, it is hoped that this Court will choose to assess the gamut of issues raised through this case (many of which carry profound implications regarding the responsibilities of those purporting   to provide administrative oversight of matters that necessitate regulation of a given industry).

            Another self-serving contradiction is embodied in efforts to preclude this physician from having requisite “standing” to bring the CBC-case before this Court[3], recognizing that this issue has repeatedly been raised by the Respondents during the past decade.  That prior “standing” was conferred due to status that is directly applicable hereto (having been a PBS Corporate Member —which contracted with CBC as well as with the other Blues—and having provided medical services to CBC-insureds) is to be summarily ignored, again in an effort to preclude this Court from addressing key-issues both raised by CBC and raised due to the fact that CBC appealed.  Thus, on the one hand, it would have this Court determine that neither CBC nor this physician has sufficient standing; it would also deny the capacity for this particular issue to be remanded for analysis by the Commonwealth Court or by the Department (as had occurred over the years).  Simply claiming that this issue had been “waived” {see the Department’s filing, page 11} would necessarily preclude the capacity for parties in consolidated cases to involve themselves in those that they had not, themselves, filed.  This cannot be the intent of the law, for it is nonsensical.

V.        ARGUMENT

A.        The Department—not the petitioner—had the burden-of-proof.

Commonwealth Court recognized (and the Respondents have never denied) the original adjudication had violated Administrative Agency Law [§504]; indeed, a proper approval hearing has never transpired, one in which the burden-of-proof rests with applicants, not protesters.  Highmark cites LaFarge, ignoring legal points in the prophylactic refutation of its applicability; both Respondents rely upon Mill Creek (and the Department also cites Pa. Game Commission), neither of which was predicated on procedural deviations from statute.  This case does not have a “unique procedural posture” as Highmark would desire; rather, it would violate black-letter law if Highmark were to enjoy rights unearned through any adverse-party adjudicatory processes.  The burden-of-proof is identical to what it was the first time [School District of Erie v. Hamot].

            B.         The Commissioner had jurisdiction over the Consolidation.

            The Insurance Holding Companies Act [40 Pa.C.S. §§ 991.1401 et seq.] states that acquisition of a Blue Cross or Blue Shield plan is exempt there-from, but it does not state that an acquisition by a Blue Cross or Blue Shield plan is exempt.  It excludes Blues Plans from the definition of “insurer,” but encompasses acquisition by a “person” of a “domestic insurer.” Unlike the definition of “insurer,” the definition of “person” does not exclude Blue Cross and Blue Shield plans.  Here, Highmark was that “person” and, therefore, was subject to the Act.

The Respondents cited a “broad and general exemption” from insurance laws that do not specifically refer and apply to non-profit health plan corporations [40 Pa.C.S. § 6103 & 6107], but they only relate to the “business of insurance”…not to fundamental corporate reorganization. 

Silence (not having mentioned Blues Plans in the Act’s specific definitions of “domestic insurer,” “involved insurer” and “person”) does not rebut the duty to discharge such oversight.

In contrast with other entities claiming this exemption (e.g., fraternal organizations),     no other laws apply; the Legislature never showed intent to exempt the Blues from any oversight.  

If the Act were read as exempting acquisitions by non-profit medical and hospital service associations, the Act still applies because Highmark was not organized under the statutes creating either type of association because (it is claimed), Highmark only inherited the Certificates of Authority of the predecessor entities.  Thus, when Highmark was formed de novo (to play this role), recalling that this was not a merger (rather, a consolidation), there was no   pre-existing entity extant to claim a presumed exemption.  The Department’s refutation {page 3} invokes the self-referential argument that the Act doesn’t apply to Blues Plans, eliding over the gravamen of this argument, namely, that Highmark didn’t comport with the Act’s requirements.  Thus, the Act applies to acquisitions of “domestic insurers” (the subsidiaries) by Blues Plans.  Thus, the process of approval of the Consolidation (inter alia by PBS) must be subject to some sort of oversight (necessitating remand to create the very record the Department had eschewed). 

            Finally, the Court noted (during subsequent discussion of the dual-certification issue), “Therefore, unlike any other type of insurer, consolidation of ‘blue plans’ is made subject to Pennsylvania’s corporate laws, not its insurance laws.”  Yet, the Court oxymoronically found that not ALL of its “corporate laws” apply, facilely excluding the most basic one (the Act).

C.        Highmark illegally holds dual-certification.

In lieu of restating the eleven (11) distilled points in the initial filing, suffice to say that the Department was not empowered to ignore precise language segregating oversight of Hospital and Professional Health Service Plans; as per Knecht, there can be no empowerment conferred simply in the absence of a specific exclusion, particularly in the absence of enabling legislation.  Sophistry led to its conjuring a favored view of legislative intent after elimination of five words.

            D.        Highmark illegally inherited its Certificates of Authority.

Thematic, here is this never-disproven assertion:  “A Certificate of Authority is not a franchise, but a license to do business, personal to the holder and not transferable; a license has both property-rights and usage-rights components, neither being exclusive.” The Respondents failed to distinguish property-transfer and the right (license) to operate said property, claiming the absence of any limitation (“without further act or deed”) applied to both property and license.

The Department cited two instances that require relicensure—related to liquor licensees and continuing care providers—and concluded that the absence of such a mandate provides “license” to preclude this process, despite inability to cite case-law supporting the view that any license can be exempt from review.  As often occurred throughout this legal process, it abjectly failed to confront Knecht, a key-limitation affecting the Blues.  Lyness is contradictory, for it mandated providing due process (identical to this physician’s stated-intent in the instant case);   it is incongruous to recognize “due process rights” exist without letting them be exercised. 

The Department also argued:  “The Health Plan Corporations Act contains no provision for cessation of operation of a Blue Plan under an existing Certificate of Authority short of dissolution or liquidation.”  Yet, no such interruption would occur if proper approvals obtained.

            This physician concluded:  “Its new bylaws, its broader corporate purpose, and its new and different balance sheet required scrutiny by the regulator(s); instead, the Department failed to assess the way Highmark envisioned discharging responsibilities dutifully being carried out by its two predecessors.”  In this section—as occurred elsewhere—the Respondents ignored numerous arguments, instead relying solely on the absolute capacity to inherit and use property.  And revelatory to what had truly, illegally transpired, the Department allowed Highmark           to function as an entity (“Health Plan Corporation”) that had never even been statutorily-defined.

                E.         The Presiding Officer excluded key antitrust concerns.     

The Department claimed that including the market-shares of BCWP/PBS within antitrust analysis would have constituted back-door review of the consolidation (violative of the IHCA).  There is no authority for this non sequitur; even were the consolidation-process to be viewed as exempt from administrative oversight, antitrust review of entities serving as specific components thereof would not be precluded.  It is counterintuitive to exclude the largest entities in the market when performing a good-faith determination of the effect of consolidation on that service-area; the statutory “Insurer A/Insurer B” structure is mutually exclusive of whatever owns A/B.    Thus, exclusion of discovery related specifically to this facet of the transaction was not justified. And it also precluded the ability to prove what subsequently emerged:  CBC/Highmark conflict.  Finally, discovery related to other key-concerns (e.g., social mission, already-affiliated person) was summarily excluded and retroactively justified by the argument that “damages” had not been incurred, despite having been overtly denied the opportunity to prove their existence. 

Also, the inability to acquire a replacement for a suddenly-absent economic expert was not justified, for it mirrored the Presiding Officer’s approval of the Department’s request for a comparable delay; this physician had agreed to ensure that the testimony of the replacement-expert would comport identically with that which had been pre-approved from the original one.  Thus, no time-delay would have occurred, and no procedural burden would have been created.  Of course, the multi-year delay in the adjudication process thereafter serves only to satirize any posture that suggests that completing the hearings in January, 2003 would have proven injurious.  Instead, Highmark mischaracterized this request as “an indefinite extension of the hearing,” and claimed that it (along with all other rulings) fell within the Department’s discretionary scope (along with the license she took when issuing her favorable Adjudications and Orders).

F.         The Presiding Officer precluded Sklaroff from optimizing his testimony.

In addition to inexplicably precluding this physician from discussing his appreciation of the impact of myriad antitrust issues (despite harboring the credentials to transcend anecdotes), the Presiding Officer precluded him from discussing negative experiences as a PBS subscriber, from discussing how PBS and Blue Cross plans had been established in Pennsylvania, and from discussing his orientation (as a PBS Corporate Member) as applied to Medicare/Medicaid.  These exclusions were based on the theory that he was functioning as an Expert Witness, rather than allowing him to testify and then to determine the applicability thereof.  The inability to use notes (which he was willing to share as an exhibit, if necessary) impugned his ability to provide complete testimony.  The Presiding Officer did not provide the rationale for these exclusions[4].  Thus, procedural, evidentiary, pre-hearing and intra-hearing rulings were prejudicial to efforts by this physician to prepare and to deliver the solid case against the Consolidation of the Blues.

G.        The Highmark Bylaws compromised the traditional PBS Social Mission.

The Respondents claimed that the Bylaws comply with statute, refusing to address the assertion that PBS had recognized that physician-leadership was mandatory when satisfying the statutory charge that it maximize “the physical and mental status of all Pennsylvanians.”  Thus,  it did not address the alteration in the bylaws that precluded both direct election of providers to the Corporate Body and their empowerment to raise Special Resolutions at the Annual Meeting. As the only defined-mechanisms for physicians to implement their patient-advocacy, they were precluded by Highmark’s new bylaws (absorbing PBS and eliminating these vital traditions).   The Respondents did not refute any of these factual arguments, instead choosing to ignore them; constant restatement of ways Highmark complied with statute doesn’t address the way it doesn’t.

H.        The Highmark witness proved the antitrust violation.        

Highmark’s witness proved the antitrust violation, regarding both the geographic and product components thereof.  The Respondents, instead, endorsed the way the Presiding Officer assessed the testimony of Ms. Colleen Gallaher “as a whole” without noting its specificity.

  Her admission that Trans-General offered both health insurance and non-health (disability and prepaid-legal) insurance coverage was transmuted into justifying the decision to aggregate “the accident and health line of business” when performing antitrust analysis, despite the fact that these diluted products could be segregated, and should have been.  It was necessary for the Department to focus on the health insurance market [many orders-of-magnitude larger, and constituting what clearly should have been the starting-point for antitrust analysis in the overlapping geographic region of PBS and BCWP (the 29 western Counties of Pennsylvania)].  Inasmuch as the need to focus study on this intuitive antitrust battleground was not refuted,         it remains the major component of anticompetitive analysis the Department still leaves undone. Similarly, the existence of scattered business-dealings outside western Pennsylvania did not preclude focusing analysis on the BCWP service region (which overlapped with that of PBS). 

The Highmark-Witness testified that the level of control Veritus could exert over a given subsidiary depended on whether it had 100% ownership thereof (contrasting KHPC and KHPW), thereby disproving the ability of the Department to consider KHPW as being “already affiliated.” The consolidation yielded a change in decision-making from shared-control to absolute-control.  All the Department could claim was that “the change in control would not cause a change in the service area of any of the subsidiaries”; it overtly side-stepped confronting the central issue, claiming “Any ambiguity in Ms. Gallaher’s testimony was for the Commissioner to resolve.”     It now falls to this Court to recognize the obvious, unambiguous import of her observations.

That she knew that the integrated (physician/hospital) products functioned regionally (i.e., the western 29 counties) meant, also, that this information was available to the Department. Thus, because both PBS and BCWP reimbursed both physicians and hospitals (directly as well as through their subsidiaries), generating distinct analyses was necessary in each venue. Thus, PBS and BCWP also overtly competed through their HMOs (a substantial part of their business), but the Department blinded itself to the recognition of overlapping geographic and service areas. 

I.          The Commissioner’s 5/26/2006 Order was profoundly defective.

            It was considered vital to devote one subject-heading specifically to this observation:  The Presiding Officer consistently exhibited bias when crucial matters were being adjudicated: The Department did not perform its initial adjudication with due diligence; The Commissioner’s 5/26/2006 Order dismissed without discussion the salient facts established at the Hearing regarding the Social Mission (as it affected the Highmark bylaws) and the Monopoly concerns; and The Commissioner’s 5/26/2006 Order was defective, both with regard to its having ignored Sklaroff’s Post-Hearing Brief and with regard to its having ignored Sklaroff’s Reply to the Briefs of Respondents Highmark and the Department.  The only defense mustered by Highmark was   to observe “the enormity of the task before the Presiding Officer.”  The only defense that would have been relevant would have been to demonstrate his due-diligence when discharging his duty to examine the factual/legal record dispassionately, absent discernable bias...an impossibility.

                        K.        The Commissioner did not perform antitrust analysis with due diligence.  

The same is true of the Commissioner, for reasons that were augmented in the perfected filing by those that had been submitted by CBC (and, thus, were indubitably part of the record).  Although Highmark predictably claimed these constituted “new theories,” they actually had been carefully tethered via a cross-walk to already-extant arguments, themselves rooted in the record.

Specifically, Highmark couldn’t identify any such “new theory” because there was none. Highmark characterized this legal-compositional effort thusly:  “He alternates between creatively paraphrasing CBC’s arguments and block-quoting entire sections of CBC’s brief below….      Dr. Sklaroff claims in his latest Petition that the inclusion of CBC’s arguments merely ‘elucidate’ the arguments he raised and preserved below.  Dr. Sklaroff’s prophylactic explanation is inaccurate and misleading.”  Yet, as was noted in the introductory paragraph, “The points made in prior briefs are augmented by those made by CBC, but no new arguments that had not previously been preserved have been introduced in this appeal…obviating Highmark’s concerns.  The filings by CBC elucidate these points and arguments.”  It is implausible that consolidating two of Pennsylvania’s largest health insurers would pass muster but, rather than state why this transaction was justifiable, Highmark created a smoke-screen…and failed to deal with the obvious information being conveyed (with which it could hardly claim lack of familiarity). And it did not require Expert Testimony to note the basic contradiction in the 1996 Kaiser Order, whereby the Consolidating Companies had been included (when determining overall market concentration) but had been excluded (from being part of the analyzed marketplace).  Nor did it require Expert Testimony to note that there was no de novo stand-alone analysis of this concern in the 2006 Koken Order (instead claiming this physician had failed to demonstrate error in the 1996 Kaiser Order).   The CBC Brief had elucidated these factors with irrefutable precision, buttressed by recognition of legislative intent through citing NAIC precedent.  Each and every datum included was a subset both of the record and of this physician’s specific arguments, subject to Highmark’s lamentation that there had been “eleven (11) main argument headings and fifty-three (53) sub-argument headings” {page 15}.  Unable to kill-the-eloquent-messenger, Highmark mischaracterized and impugned motives; rather should it have confronted the content.

L.         Capital Blue Cross should have standing to raise its concerns.  

The Respondents train the full-force of their legal energies to avoiding the necessity to deal with CBC and its arguments.  The latter has been addressed in a cursory fashion supra, and counter-energies are necessarily expended [noting the 15-page limitation, per P.R.A.P. 2135(2)] in an abbreviated effort to remind this Court of the forces behind the CBC filing.  Simply put, CBC’s survival is threatened by Highmark, an 800-pound gorilla functioning also as a guerrilla.  Were this case adjudicated in a fashion adverse to CBC, the absence of a JOA will not protect CBC from the competitive reserves that Highmark has accrued.  The obvious goal, therefore, harbored by this physician is simply to ensure that the Commonwealth Court’s decision to reject CBC’s input has been subject to judicial review, inasmuch as it is counterintuitive to argue that  it could have entered the fray a decade ago before it had suffered harm from Highmark’s powers.  Merely noting this physician’s prior linkage (which was direct/substantial/immediate) through PBS to CBC (through cooperative agreements that had been extant in the 1990’s) should suffice when weighing whether the prior achievement of standing can easily be applied in this setting.  Claiming that the exclusion of CBC (and its erudition) would not cause this physician “harm” would also require “a willing suspension of disbelief” when envisioning future contracting limits absent meager remaining competition (reinforcing Highmark’s already formidable monopsony).  As noted in the initial filing, it is “the law of this case” that a standing issue can be transferred to the Insurance Department for factual/legal exploration (as per the 8/12/1997 Leadbetter referral).  This physician would have no problem having his standing adjudicated, as a necessary first-step towards having CBC’s standing confirmed.  CBC has been harmed by Highmark, even as it embraces the principles and value of robust—but fair—competition; CBC is now confronted by Highmark’s overwhelming, unfair, illegal competition…that it had not envisioned a decade ago.

VI.       SUMMARY

It has been a remarkable experience contending with the legal minds of the Respondents.  Whereas a prior complaint that excess modification was made when filing the Perfected Petition, Highmark now complains that this physician failed to comport with key-requirements, despite having been afforded “a second bite at the apple.”  [Meticulous efforts were made to show that no unfair advantage was going to be taken in this process of transforming CBC’s intact-content into the pre-established structure (and not changing anything else except for accepting the kind invitation to advocate on behalf of CBC’s being included as part of the appeal to this Court).]  Through it all, efforts were made to suppress frustration that the Court had failed to examine the accumulated arguments (carefully preserved, lest the Respondents further delimit this appeal).  And, ultimately, it is necessary to encapsulate these arguments (as per the Respondents’ plea):  The one time this Court “spoke” regarding regulation of the Blues (Knecht), it specifically precluded them from exceeding statutory limit; there was no presumption that the absence of any prohibition constituted license to run amok, as occurred throughout this Consolidation process. 

VII.     CONCLUSION

Wherefore Petitioner Robert B. Sklaroff, M.D. respectfully requests that this Court set aside the Commonwealth Court’s Order dismissing this challenge to the Consolidation creating Highmark. Alternatively, Dr. Sklaroff requests that the 1996 “Decision and Order” be vacated, thus re-establishing the independent existences of PBS and BCWP; disapproving the Highmark Bylaws and retransferring the subsidiaries to PBS (to recreate the December 5, 1996 status).

Respectfully submitted,

___________________

                                                            Robert B. Sklaroff, MD,

                                                            Pro Se

                                                            March 23, 2008

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