Jump To

Top Caption [Lead Opinion

                  by Olson](https://www.courtlistener.com/opinion/10801710/cvs-pharmacy-v-the-city-of-philadelphia/about:blank#o1)

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

CVS Pharmacy v. The City of Philadelphia

Superior Court of Pennsylvania

• Citations: 2026 Pa. Super. 36
• Docket Number: 3093 EDA 2024

• Judges: Olson

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (30.3K)

• PDF

Lead Opinion

                        by [Judith Ference Olson](https://www.courtlistener.com/person/8241/judith-ference-olson/)

J-A18005-25 2026 PA Super 36

CVS PHARMACY, INC., CVS RX : IN THE SUPERIOR COURT OF
SERVICES, INC., CVS INDIANA, : PENNSYLVANIA
L.L.C., PENNSYLVANIA CVS :
PHARMACY L.L.C, ALBERTSON'S LLC, :
AND ACME MARKETS, INC. :
:
Appellants :
:
: No. 3093 EDA 2024
v. :
:
:
THE CITY OF PHILADELPHIA, :
PENNSYLVANIA :

Appeal from the Order Entered July 24, 2024
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 210902183

BEFORE: OLSON, J., BECK, J., and FORD ELLIOTT, P.J.E. *

OPINION BY OLSON, J.: FILED FEBRUARY 27, 2026

Appellants, CVS and Albertsons (hereinafter “the Appellant

Pharmacies”),1 appeal by permission from the interlocutory order entered on

July 24, 2024, which overruled their preliminary objections. We affirm.

---

• Retired Senior Judge assigned to the Superior Court.

1 The appellate entities which are identified as “CVS” are CVS Pharmacy, Inc.,

CVS Rx Services, Inc., CVS Indiana, L.L.C., and Pennsylvania CVS Pharmacy
L.L.C.; the appellate entities which are identified as “Albertson’s” are
Albertson’s LLC and ACME Markets, Inc.
J-A18005-25

In 2021, the City of Philadelphia (“the City”) filed a complaint against

the Appellant Pharmacies.2 According to the complaint, the Appellant

Pharmacies are engaged in the business of “distribut[ing] and dispens[ing]

prescription opioids throughout the United States, including in the City.” The

City’s Complaint, 9/28/21, at ¶¶ 35-60. Most prescription opioids are

identified as “Schedule II” controlled substances and are heavily regulated

under Pennsylvania law.3 Id. at ¶ 11; see also 35 P.S. § 780-104(2). By

definition, a Schedule II controlled substance is one that has “a high potential

for abuse, currently accepted medical use in the United States, or currently

accepted medical use with severe restrictions, and abuse may lead to severe

psychic or physical dependence.” 35 P.S. § 780-104(2).

Under Pennsylvania law, the Appellant Pharmacies “are subject to

various duties to report the quantity of Schedule II controlled substances in

order to monitor such substances and prevent oversupply and diversion into

the illicit market.” The City’s Complaint, 9/28/21, at ¶ 72. The Appellant

Pharmacies also have “several responsibilities under Pennsylvania law . . . to

---

2 The City filed its complaint against a number of other defendants.
The other
defendants either settled or declared bankruptcy, leaving the Appellant
Pharmacies as the only remaining defendants in this case.

3 These prescription opioids include hydrocodone and oxycodone. See 35 P.S.
§ 780-104(2)(i)(1). Illicit opioids, such as heroin, cannot be prescribed, as
these types of opioids are defined as “Schedule I” controlled substances. See
35 P.S. § 780-104(1)(ii)(10); see also 35 P.S. § 780-104(1) (defining a
“Schedule I” controlled substance as one that has: “a high potential for abuse,
no currently accepted medical use in the United States, and a lack of accepted
safety for use under medical supervision”).

-2-
J-A18005-25

control [] the supply chain of opioids.” Id. at 76. These responsibilities

include: “set[ting] up a system to prevent diversion [of opioids], including

[flagging] excessive volume and other suspicious orders;” reporting suspicious

orders to the relevant enforcement authorities; stopping shipments of any

order which is flagged as suspicious; not filling or shipping “any suspicious

prescription or order unless they have conducted an adequate investigation

and determined that the prescription or order is not likely to be diverted into

illegal channels;” exercising “reasonable care in delivering” the opioids;

“speak[ing] accurately and truthfully . . . about opioids and their efforts to

combat diversion;” and, “provid[ing] effective controls and procedures to

guard against theft and diversion of the [opioids].” Id. at ¶¶ 76-118. The

complaint alleged that the Appellant Pharmacies knowingly violated these

duties and “allowed widespread diversion [of opioids] to occur,” so that the

Appellant Pharmacies could “focus on filling all prescriptions as quickly as

possible” and “bolster their revenue, increase profit, and grow their share of

the prescription painkiller market.” Id. at ¶¶ 72, 75, and 155.

In doing so, the City alleged, the Appellant Pharmacies created “an

opioid-fueled public health and safety emergency of unprecedented

dimensions that has endangered, and continues to endanger, the health,

safety and peace of Philadelphia and its residents.” Id. at ¶ 547. This public

health and safety emergency:

includes historically high incidences of opioid addiction and
opioid use disorder and of opioid-related deaths and non-fatal
opioid overdoses. It also includes other adverse health

-3-
J-A18005-25

effects of opioid addiction and opioid use disorder including
historically high incidences of babies born with opioid
withdrawal conditions, and an unprecedented increase in new
hepatitis C virus (“HCV”) infections caused by opioid
injections. The epidemic has also been accompanied by an
unprecedented level of opioid-related emergency room visits
and hospitalizations; extensive provision of emergency
response services by the Fire Department and other City
agencies in reviving and transporting overdose victims; and
the expenditure of enormous resources by the Police
Department, District Attorney’s Office, Public Defender’s
Office, Health Department, Department of Behavioral Health
and Intellectual Disability Services, Department of Human
Services, and other City departments and agencies providing
health and related services to address increased crime and
violence and family and social dysfunction linked to opioid
use and addiction. The Medical Examiner’s office is struggling
to keep up with the rising tide of opioid deaths. In 2017, the
homicide rate in Philadelphia reached its highest level since
2012, due in part to the opioid epidemic and competition from
rival drug dealers who sell opioids. The number of homicides
has continued to rise.

Id. at ¶ 548. Further, the complaint alleged that the opioid epidemic has

caused “piles of trash, needles, and other waste” to “litter[] City streets” and

created the “largest open-air drug market on the East Coast” in the Kensington

area of Philadelphia. Id. at ¶¶ 583-584. According to the complaint, this drug

market consisted of “a sprawling encampment of drug users who injected

themselves with opioids and heroin in broad daylight” and littered the area

with “[p]iles of trash and hundreds of thousands of used needles.” Id. at

¶ 583. This encampment was eventually shut down in 2017, due “in no small

part . . . [to the] law enforcement efforts by the City.” Id.

As is relevant to the current appeal, the City claimed that the Appellant

Pharmacies created a public nuisance by “distribut[ing], dispens[ing], and

-4-
J-A18005-25

[selling] far greater quantities of prescription opioids than they knew could be

necessary for legitimate medical uses, while failing to report, and to take steps

to halt, suspicious orders when they were identified.” The City’s Complaint,

9/28/21, at ¶ 2. According to the complaint, this caused the City to

“experience[] both a flood of prescription opioids available for illicit use or sale

and a population of patients physically and psychologically dependent on

them.” Id. The City alleged that it sustained the following economic harm as

a result of the Appellant Pharmacies’ conduct:

(1) costs for providing medical care, additional therapeutic
and prescription drug purchases, and other treatments for
patients suffering from opioid-related addiction or disease,
including overdoses and deaths; (2) costs for providing
treatment, counseling, and rehabilitation services; (3) costs
for providing treatment of infants born with opioid-related
medical conditions; (4) costs for providing welfare for
children whose parents suffer from opioid-related disability or
incapacitation; (5) costs associated with law enforcement
and public safety related to the opioid epidemic and (6) loss
of tax revenue due to the decreased efficiency and size of the
working population in the City.

Id. at ¶ 19.

The City sought the abatement of the public nuisance and redress for

the harms caused by the public nuisance, including an order “requir[ing the

Appellate Pharmacies] to pay for the cost of detoxification and treatment,

including after-care, of every resident in the City currently suffering from

-5-
J-A18005-25

opioid addiction attributable to prescription opioids.” 4 Id. at “Wherefore”

Clause; see also id. at ¶¶ 20-21.

As is relevant to the current appeal, the Appellant Pharmacies filed a

preliminary objection in the nature of a demurrer to the City’s complaint.

Specifically, the Appellant Pharmacies contended that the City’s public

nuisance claim failed as a matter of law because “the [complaint] fail[ed] to

allege a violation of a public right.” The Appellant Pharmacies’ Preliminary

Objections, 4/9/24, at ¶ 12.

On July 24, 2024, the trial court overruled the Appellant Pharmacies’

preliminary objections, concluding that “the City has sufficiently pled a cause

of action for public nuisance affecting the ‘public estate’ including, but not

limited to, the City of Philadelphia’s historic neighborhoods, parks, streets,

and public spaces and the enjoyment thereof.” Trial Court Order, 7/24/24, at

1 n.1. After the trial court denied the Appellant Pharmacies’ motion to certify

the July 24, 2024 interlocutory order for immediate appeal, the Appellant

Pharmacies filed a petition for permission to appeal from the interlocutory

order in this Court. On November 26, 2024, this Court granted the petition.

Order, 11/26/24, at 1. The Appellant Pharmacies raise one claim on appeal:

---

4 The City’s complaint raised three counts against the Appellant Pharmacies:

public nuisance; violation of Pennsylvania’s Unfair Trade Practices and
Consumer Protection Law (“UTPCPL”); and, unjust enrichment. During the
course of the proceedings, the latter two claims were dismissed, thus leaving
the public nuisance claim as the only surviving claim in this litigation. See
Stipulation to Dismiss the UTPCPL Claim, 9/9/24, at 1; Stipulation to Dismiss
the Unjust Enrichment Claim, 10/3/24, at 1.

-6-
J-A18005-25

Can the City allege a public-right violation based on the
aggregation of individual harms from the abuse or misuse of
government-approved prescription opioid medications
distributed and dispensed by the [Appellant Pharmacies]
pursuant to prescriptions from licensed doctors?

The Appellant Pharmacies’ Brief at 5.

As our Supreme Court explained:

As a trial court’s decision to [sustain or overrule] a demurrer
involves a matter of law, our [scope of reviewing] that
decision is plenary. Preliminary objections in the nature of
demurrers are proper when the law is clear that a plaintiff is
not entitled to recovery based on the facts alleged in the
complaint. Moreover, when considering a motion for a
demurrer, the trial court must accept as true all well-pleaded
material facts set forth in the complaint and all inferences
fairly deducible from those facts.

Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004)

(quotation marks and citations omitted). Further,

Our standard of review of an order of the trial court overruling
or [sustaining] preliminary objections is to determine
whether the trial court committed an error of law. When
considering the appropriateness of a ruling on preliminary
objections, the appellate court must apply the same standard
as the trial court.

Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint[.] Preliminary objections
which seek the dismissal of a cause of action should be
sustained only in cases in which it is clear and free from doubt
that the pleader will be unable to prove facts legally sufficient
to establish the right to relief. If any doubt exists as to
whether a demurrer should be sustained, it should be
resolved in favor of overruling the preliminary objections.

Bargo v. Kuhns, 98 A.3d 686, 689 (Pa. Super. 2014) (quotation marks and

citations omitted).

-7-
J-A18005-25

Our courts define the tort of public nuisance in accordance with Section

821B of the Restatement (Second) of Torts. See, e.g., Machipongo Land

and Coal Co. v. Commonwealth, 799 A.2d 751, 773 (Pa. 2002). This

section declares:

(1) A public nuisance is an unreasonable interference with a
right common to the general public.

(2) Circumstances that may sustain a holding that an
interference with a public right is unreasonable include the
following:

(a) Whether the conduct involves a significant
interference with the public health, the public safety, the
public peace, the public comfort or the public
convenience, or

(b) whether the conduct is proscribed by a statute,
ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has
produced a permanent or long-lasting effect, and, as the
actor knows or has reason to know, has a significant
effect upon the public right.

Restatement (Second) of Torts § 821B.

On appeal, the Appellant Pharmacies argue that the City’s public

nuisance claim fails as a matter of law because it does not allege the violation

of a public right. Relying heavily on the Commonwealth Court’s 2023 opinion

in Atlantic Richfield Co. v. County of Montgomery, 294 A.3d 1274 (Pa.

Cmwlth. 2023), the Appellant Pharmacies contend that the City has merely

alleged “the aggregation of individual harms” and not the violation of a public

right. See The Appellant Pharmacies’ Brief at 14-32. We disagree.

-8-
J-A18005-25

“In its inception a public, or common, nuisance was an infringement of

the rights of the Crown.” Restatement (Second) of Torts § 821B, cmt. a. “By

the time of Edward III the principle had been extended to the invasion of the

rights of the public, represented by the Crown, by such things as interference

with the operation of a public market or smoke from a lime-pit that

inconvenienced a whole town.” Id. “The remedy remained exclusively a

criminal one in the hands of the Crown until the sixteenth century, when it

was first held that a private individual who had suffered particular damage

differing from that sustained by the public at large might have a tort action to

recover damages for the invasion of the public right.” Id.

The comments to Section 821B further declare:

At common law public nuisance came to cover a large,
miscellaneous and diversified group of minor criminal
offenses, all of which involved some interference with the
interests of the community at large – interests that were
recognized as rights of the general public entitled to
protection. Thus public nuisances included interference with
the public health, as in the case of keeping diseased animals
or the maintenance of a pond breeding malarial mosquitoes;
with the public safety, as in the case of the storage of
explosives in the midst of a city or the shooting of fireworks
in the public streets; with the public morals, as in the case of
houses of prostitution or indecent exhibitions; with the public
peace, as by loud and disturbing noises; with the public
comfort, as in the case of widely disseminated bad odors,
dust and smoke; with the public convenience, as by the
obstruction of a public highway or a navigable stream; and
with a wide variety of other miscellaneous public rights of a
similar kind. In each of these instances the interference with
the public right was so unreasonable that it was held to
constitute a criminal offense. For the same reason it also
constituted a tort. Many states no longer recognize common
law crimes, treating the criminal law as entirely statutory.

-9-
J-A18005-25

But the common law tort of public nuisance still exists, and
the traditional basis for determining what is a public nuisance
may still be applicable.

Id. at cmt. b.

Although the tort of public nuisance originated in criminal law, “there is

clear recognition that a defendant need not be subject to criminal

responsibility” to be liable for the tort of creating a public nuisance. See id.

at cmt. d; see also Commonwealth v. MacDonald, 347 A.2d 290, 303 (Pa.

1975) (plurality) (“[a] thing may be a public nuisance because it is so declared

by statute, either explicitly or implicitly. Alternatively, it may be declared a

nuisance as a matter of common law if, though not prohibited by statute, it

unreasonably interferes with the rights of the public”).

The current appeal concerns the tort’s elemental requirement of an

unreasonable interference with a “public right.” See Restatement (Second)

of Torts § 821B(1) (“A public nuisance is an unreasonable interference with a

right common to the general public”). As to this issue, the comments to

Section 821B declare:

A public right is one common to all members of the general
public. It is collective in nature and not like the individual
right that everyone has not to be assaulted or defamed or
defrauded or negligently injured. Thus the pollution of a
stream that merely deprives fifty or a hundred lower riparian
owners of the use of the water for purposes connected with
their land does not for that reason alone become a public
nuisance. If, however, the pollution prevents the use of a
public bathing beach or kills the fish in a navigable stream
and so deprives all members of the community of the right to
fish, it becomes a public nuisance.

...

• 10 - J-A18005-25

It is not, however, necessary that the entire community be
affected by a public nuisance, so long as the nuisance will
interfere with those who come in contact with it in the
exercise of a public right or it otherwise affects the interests
of the community at large. The obstruction of a public
highway is a public nuisance, although no one is travelling
upon the highway or wishes to travel on it at the time. In
many cases the interests of the entire community may be
affected by a danger to even one individual. Thus the threat
of communication of smallpox to a single person may be
enough to constitute a public nuisance because of the
possibility of an epidemic; and a fire hazard to one adjoining
landowner may be a public nuisance because of the danger
of a conflagration.

Id. at cmt. g.

The question of “whether there is public right[] is an issue of law.”

Machipongo Land and Coal, 799 A.2d at 773.

As noted above, the Appellant Pharmacies rely upon the Commonwealth

Court’s opinion in Atlantic Richfield to support their argument that the City’s

complaint fails to claim the violation of a public right. 5 In Atlantic Richfield,

Montgomery County (“the County”) sued a number of companies that

manufactured lead paint for household use between the years of 1880 and

1977 (“the Manufacturers”). Atlantic Richfield, 294 A.3d at 1277. The

---

5 The Appellant Pharmacies also rely on State ex rel. Hunter v. Johnson &

Johnson, 499 P.3d 719 (Okla. 2021) to support their claim. Hunter is an
opinion from the Oklahoma Supreme Court and has limited persuasive value
to this Court. This is especially true in light of the fact that the Hunter Court
emphasized its analysis and conclusion were based upon specific “Oklahoma
nuisance statutes as construed by [the Oklahoma Supreme] Court,” as well
as “Oklahoma precedent, and the limitations [on public nuisance] set by
Oklahoma case law.” Hunter, 499 P.3d at 725 and 731.

• 11 - J-A18005-25

County’s complaint alleged that “[t]he use of lead paint is associated with

various health hazards that have been widely known for centuries” and,

“[b]ecause of its dangers, the federal government banned the manufacture

and sale of lead paint in 1978.” Id.

The County’s complaint alleged that “deteriorating lead paint continues

to be the primary source of lead poisoning in young children” and that lead

poisoning can cause “devastating and permanent mental injuries” in these

children. Id. Further, the County alleged that approximately 65% of the

residential structures in the area “were built before lead paint was banned

and, therefore, may be contaminated by lead paint.” Id.

As is relevant to the case at bar, the County claimed that the

Manufacturers of the lead paint created “a public nuisance under the common

law of Pennsylvania.” Id. at 1278. After the trial court overruled the

Manufacturers’ preliminary objection in the nature of a demurrer, the

Commonwealth Court granted the Manufacturers’ petition for permission to

appeal the interlocutory order. Id. at 1279.

On appeal to the Commonwealth Court, the Manufacturers claimed that

the public nuisance claim failed as a matter of law, as the County’s complaint

“fail[ed] to allege the interference with a public right.” Id. at 1283 (quotation

marks omitted). According to the Manufacturers, the County’s complaint

merely alleged “a risk of personal injury from lead paint to individuals within

privately owned – not publicly accessible residences.” Id. (quotation marks

and corrections omitted). The Commonwealth Court agreed with the

• 12 - J-A18005-25

Manufacturers and concluded that the trial court erred when it overruled the

Manufacturers’ preliminary objection in the nature of a demurrer. See id. at

1289.

According to the Atlantic Richfield court, the County’s complaint did

not allege the interference with a public right, which was necessary to support

its public nuisance claim, as the allegations were limited to lead paint present

in “private homes and residences throughout the County.” See id. at 1284.

The court reasoned that this aspect of the complaint rendered the allegations

“akin to [a claim for the violation of] individual rights ‘not to be assaulted or

defamed or defrauded or negligently injured,’ which cannot give rise to public

nuisance actions.” Id. at 1285, quoting Restatement (Second) of Torts

§ 821B cmt. g. The individual nature of the rights was apparent, the court

reasoned, “in that one dwelling may be adversely impacted by lead paint,

while others nearby may not be impacted at all.” Atlantic Richfield, 294

A.3d at 1285.

The holding in Atlantic Richfield does not control the case at bar. At

the outset, Atlantic Richfield is an opinion from the Commonwealth Court

and is, thus, not binding on this Court. See Lynn v. Aria Heath Sys., 227

A.3d 22, 32 (Pa. Super. 2020) (“we are not bound by decisions of the

Commonwealth Court, [although] such decisions provide persuasive authority

and we may turn to our colleagues on the Commonwealth Court for guidance

when appropriate”) (quotation marks, citations, and corrections omitted).

• 13 - J-A18005-25

Second, the Atlantic Richfield court held that the County’s claims of

harm were limited to multiple, individual injuries from lead paint contained in

multiple, individual private dwellings – but did not extend to the violation of a

public right or to a “communal injury.” See Atlantic Richfield, 294 A.3d at

1285 (“[w]hile it is true that public nuisances may occur on private property,

the rights that are adversely impacted must still be ‘collective in nature’”).

Here, however, the City has claimed a communal injury, most notably, by

alleging that the Appellant Pharmacies created the opioid epidemic, which then

foreseeably caused the addicted individuals to litter the public streets of

Philadelphia with used hypodermic needles and to occupy a portion of the

Kensington area of Philadelphia in “a sprawling encampment of drug users

who injected themselves with opioids and heroin in broad daylight” and

littered the area with “[p]iles of trash and hundreds of thousands of used

needles.” The City’s Complaint, 9/28/21, at ¶¶ 583-584. As our Supreme

Court has held, “the obstruction of a public highway is a public nuisance.”

Presbyterian Hosp. v. City of Phila., 198 A. 53, 54 (Pa. 1938). Thus, based

upon these allegations alone, the Appellant Pharmacies’ claim fails, as the

above allegations plead the violation of a public right. See id.

Moreover, the City alleged that the opioid epidemic – which was created,

in part, by the Appellant Pharmacies – caused a dramatic increase in crime,

including homicides, in the City. As one commentator wrote:

Public authorities traditionally have criminally prosecuted or
used injunctive relief to abate public nuisances threatening
public safety and public health. Protecting citizens from

• 14 - J-A18005-25

crime and violence traditionally has been viewed as one of
the core functions of public authorities. Hence, injury
resulting in this context appropriately and logically should be
viewed as a violation of a public right.

Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. CIN.

L. REV. 741, 817-818 (2003); see also Restatement (Second) of Torts

§ 821B(2)(a) (“Circumstances that may sustain a holding that an interference

with a public right is unreasonable include the following: (a) Whether the

conduct involves a significant interference with the public health, the public

safety, the public peace, the public comfort or the public convenience”).

In the case at bar, the City did not merely allege that the conduct of

the Appellant Pharmacies injured individual people. Rather, the City alleged

that the conduct of the Appellant Pharmacies injured Philadelphians in the

collective sense, by harming their collective safety in the community. See,

e.g., Restatement (Second) of Torts § 821B cmt. g (“It is not . . . necessary

that the entire community be affected by a public nuisance, so long as the

nuisance will interfere with those who come in contact with it in the exercise

of a public right or it otherwise affects the interests of the community at

large”). This allegation thus also properly pleads the interference with a

“public right.”

Accepting as true all well-pleaded material facts set forth in the

complaint and all inferences fairly deducible from those facts, we conclude

• 15 - J-A18005-25

that the City properly pleaded the violation of a public right. The Appellant

Pharmacies’ claim to the contrary thus fails. 6, 7

---

6 To the extent the Appellant Pharmacies claim they cannot be liable for
“another individual’s use or misuse of a lawful product,” we note that the crux
of the City’s claim is that the Appellant Pharmacies distributed mass amounts
of opioids in violation of the law and regulations to which they were
beholden and, in so doing, created an opioid epidemic in Philadelphia. See
The City’s Complaint, 9/28/21, at ¶¶ 76-118; see also Restatement (Second)
of Torts § 821B(2)(b) (“Circumstances that may sustain a holding that an
interference with a public right is unreasonable include . . . whether the
conduct is proscribed by a statute, ordinance or administrative regulation”).
Moreover, the Appellant Pharmacies’ statement that they cannot be liable for
“another individual’s use or misuse of a lawful product” seems to be at odds
with Section 821B of the Restatement (Second) of Torts. To be sure, as
comment b of Section 821B specifically declares, an example of a common
law public nuisance is “the shooting of fireworks in the public streets” – which
constitutes a misuse of a lawful product that harms public safety. See
Restatement (Second) of Torts § 821B cmt. b.

7 We note that the Restatement (Third) of Torts: Liability for Economic Harm
appears to preclude public nuisance liability for product harm. See
Restatement (Third) of Torts: Liab. For Econ. Harm § 8 cmt. g (“Tort suits
seeking to recover for public nuisance have occasionally been brought against
the makers of products that have caused harm, such as tobacco, firearms,
and lead paint. These cases vary in the theory of damages on which they seek
recovery, but often involve claims for economic losses the plaintiffs have
suffered on account of the defendant's activities; they may include the costs
of removing lead paint, for example, or of providing health care to those
injured by smoking cigarettes. Liability on such theories has been rejected by
most courts, and is excluded by this Section, because the common law of
public nuisance is an inapt vehicle for addressing the conduct at issue. Mass
harms caused by dangerous products are better addressed through the law of
products liability, which has been developed and refined with sensitivity to the
various policies at stake”). Notwithstanding this comment, our Supreme Court
has never held that this section of the Third Restatement or any of its
comments correctly restates the common law of Pennsylvania.

• 16 - J-A18005-25

Order affirmed. Jurisdiction relinquished.

Date: 2/27/2026

• 17 -