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COMMONWEALTH OF PENNSYLVANIA, :
By JOSH SHAPIRO, :
Attorney General, et al.; :
:
Petitioners, :
v. : No. 334 M.D. 2014
:
UPMC, A Nonprofit Corp., et al.; :
:
Respondents :
not yet been received and, therefore, it was not possible to discern the Judge’s reaction to
this filing. Therefore, a paper-copy of the Order was requested from the Prothonotary,
was the Opinion/Order about which news-reports had emerged, referenced previously.
the goal is to amplify the necessity to attain Standing based upon key-excerpts from the
latter document, inasmuch as the former document again lacks any exposition that would
[1]—enumerate rationale, and/or [2]—refute the filing that had triggered its issuance.
The gravamen of this initiative is based upon the ongoing necessity to uphold PBS’s
Social Mission (as Highmark’s predecessor entity); out of an abundance of caution, all
correlative with the original Social Mission of PBS, although the focus must be trained
[“De Facto Merger Doctrine and Successor Liability under Pennsylvania Law”] reprinted
Successor liability is an exception to the general rule that, when one entity
sells assets to another entity, the assets are transferred free and clear of all
but valid liens and security interests. When successor liability is imposed,
a plaintiff with a claim against the seller may assert that claim against and
collect payment from the buyer. In Pennsylvania, the general rule does not
apply and liability attaches to the successor when one of the following is
shown: (1) the purchaser expressly or impliedly agrees to assume such
obligation; (2) the transaction amounts to a consolidation or merger (“de
facto merger”); (3) the purchasing corporation is merely a continuation of
the selling corporation; (4) the transaction is fraudulently entered into to
escape liability; (5) the transfer was not made for adequate consideration
and provisions were not made for the creditors of the transferor; or (6) the
successor undertakes to conduct the same manufacturing operation of the
transferor’s product lines in essentially an unchanged manner. The
successor is then strictly liable for injuries caused by defects in the product
line, even if previously manufactured and distributed by the transferor
(commonly referred to as the “Product Line exception”).
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The Pennsylvania Superior Court, in a 2009 case, established the primacy
of the continuity of ownership factor by holding that if the owners or the
seller do not have an ownership interest in the purchaser, the transaction is
not a de facto merger and, accordingly, the purchaser is not liable for the
seller’s obligations. In 2012, the Pennsylvania Supreme Court vacated and
remanded the Superior Court’s 2009 decision in Fizzano Brothers
Concrete Products, Inc. v. XLN, Inc., et al., 42 A.3d 952 (2012).
and, thus, Standing in the prior litigation mandates Standing in the current litigation.
The Social Mission is intertwined with the other matters before the Court, as illustrated
by the following citations regarding the Current Petition{page #/paragraph #/line #},
noting that these excerpts do not constitute an exhaustive annotation of this document
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Finally, “context” is not rigorously maintained in this process, for the goal is to show that
the assessment of the Consent Decree must include each of the concerns raised in the
initial filing, notwithstanding the fact that it was composed prior to reviewing points both
in the new Opinion/Order and in the aforementioned Newsletter. Inasmuch as the rapid
is contemplated in the Order), it is again felt that addressing [and honoring] this Petition
will not appreciably delay the prompt/efficient resolution of the overall matter. Consider:
One more point should be derived from the “Gestalt” of the overall document, to wit, that
many points raised by the Parties are subsequently adjudicated as whether they satisfy the
ambit of the Consent Order that they fall within its confines. Thus, pre-emptive claims
that Applicant will err from the thrust of the case are unjustified, for sufficient routine
remedies are available and have been employed to preclude confusion/delay in this case.
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It is averred the Opinion/Order corroborates assertions that the Court (and the public)
would benefit were Applicant to be granted Standing to become involved in the process
of Highmark and, to whatever degree there is overlap, of UPMC (concurrent with the
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,
April 6, 2019
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CERTIFICATE OF SERVICE
I hereby certify that I am this 6th day of April, 2019, serving a true and correct copy of the
foregoing
APPLICATION FOR RELIEF BY EN-BANC REVIEW
OF ORDER DENYING APPLICATION FOR RECONSIDERATION
OF AN ORDER BY A SINGLE JUDGE
FOLLOWING DENIAL OF APPLICATION FOR LEAVE TO INTERVENE
on all parties via electronic mail as indicated below:
Kenneth L. Joel
Deputy General Counsel
PA OFFICE OF GENERAL COUNSEL
kennjoel@pa.gov
Victoria S. Madden
Deputy General Counsel
PA OFFICE OF GENERAL COUNSEL
vmadden@pa.gov
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Amy Daubert
Chief Counsel
PA Department of Insurance
adaubert@pa.gov
Yvette Kostelec
Chief Counsel
PA Department of Health
ykostelac@pa.gov
Mark A. Pacella
Chief Deputy Attorney General
Charitable Trusts and Organizations Section
mpacella@attorneygeneral.gov
Tracy W. Wertz
Chief Deputy Attorney General
Antitrust Section
twertz@attorneygeneral.gov
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