IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Commonwealth of Pennsylvania, : 

by and through The Philadelphia :

District Attorney, Larry Krasner, :

:

Plaintiff :

:

 v. : No. 233 M.D. 2021

:

The Attorney General of the :

Commonwealth of Pennsylvania, :

:

Defendant :

The Commonwealth of Pennsylvania, :

by and through the Allegheny County :

District Attorney, Stephen A. Zappala, Jr., :

:

Plaintiff :

:

 v. : No. 250 M.D. 2021

:

The Attorney General of the :

Commonwealth of Pennsylvania, :

McKesson Corp., Cardinal Health, :

Inc. and AmerisourceBergen Drug Corp., :

:

Defendants :

The Commonwealth of Pennsylvania, : 

by and through The Philadelphia :

District Attorney, Larry Krasner, :

:

Plaintiff :

:

 v. : No. 260 M.D. 2021

:

The Attorney General of the :

Commonwealth of Pennsylvania, :

:

Defendant :
2

The Commonwealth of Pennsylvania, :

by and through the Allegheny :

County District Attorney, :

Stephen A. Zappala, Jr. :

:

Plaintiff :

:

v. : No. 261 M.D. 2021

: Argued: December 13, 2021

The Attorney General of the :

Commonwealth of Pennsylvania, :

Johnson & Johnson, Janssen :

Pharmaceuticals, Inc., Ortho-McNeil- :

Janssen Pharmaceuticals, Inc., and :

Janssen Pharmaceutica, Inc., :

:

Defendants :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge (P.)

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: February 4, 2022

Before the Court in these consolidated matters are the preliminary 

objections (POs)2 of the Attorney General of the Commonwealth of Pennsylvania 

1 This matter was assigned to the panel before January 3, 2022, when President Judge 

Emerita Leavitt became a senior judge on the Court.

2

“In ruling on preliminary objections, the courts must accept as true all well-pled facts that 

are material and all inferences reasonably deducible from the facts.” Pennsylvania Independent 

Oil and Gas Association v. Department of Environmental Protection, 135 A.3d 1118, 1123 (Pa. 

Cmwlth. 2015), aff’d, 161 A.3d 949 (Pa. 2017) (citation omitted). “However, we ‘are not required 

(Footnote continued on next page...)
3

(AG), McKesson Corp., Cardinal Health, Inc., AmerisourceBergen Drug Corp. 

(collectively, Distributors), Johnson & Johnson, Janssen Pharmaceuticals, Inc., 

Ortho-McNeil-Janssen Pharmaceuticals, Inc., and Janssen Pharmaceutica, Inc. 

(collectively, Manufacturer) to the Complaints for Declaratory Relief (PFRs)3filed 

by the Commonwealth of Pennsylvania, by and through the Philadelphia District 

Attorney, Larry Krasner (DA Krasner), and the Allegheny County District Attorney, 

Stephen A. Zappala, Jr. (DA Zappala) (collectively, DAs), pursuant to the 

Declaratory Judgments Act (DJA).4 We sustain the AG’s, Distributors’, and 

Manufacturer’s POs, and dismiss the PFRs.

The following facts may be summarized from the PFRs and the exhibits 

appended thereto. On June 15, 2017, the AG5 announced that his office was 

to accept as true any unwarranted factual inferences, conclusions of law or expressions of 

opinion.’” Id. “To sustain preliminary objections, ‘it must appear with certainty that the law will 

permit no recovery’ and ‘[a]ny doubt must be resolved in favor of the non-moving party.’” Id.

3 Although styled as Complaints, the appropriate pleading that is used to commence an 

action in our original jurisdiction against the Commonwealth and its officers under Chapter 15 of 

the Pennsylvania Rules of Appellate procedure are petitions for review. See, e.g., MFW Wine Co., 

LLC v. Pennsylvania Liquor Control Board, 231 A.3d 50, 52 n.1 (Pa. Cmwlth. 2020) (Brobson, 

J., single-judge opinion) (“Consistent with the applicable rules of appellate procedure, the Court 

treats the Amended Complaint as a petition for review directed to this Court’s original jurisdiction. 

See Pa. R.A.P. 1501(a)(3), 1502, 1503.”). Consistent with the foregoing, we refer to the filings as 

PFRs.

4

42 Pa. C.S. §§7531-7541.

5 Article IV, section 4.1 of the Pennsylvania Constitution provides that the AG “shall be 

the chief law officer of the Commonwealth and shall exercise such powers and perform such duties 

as may be imposed by law.” Pa. Const. art. IV, §4.1. In relevant part, Section 204(a)(1) and (2), 

(c), and (d) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, as amended, 

71 P.S. §732-204(a)(1) and (2), (c) and (d) states:

(a) Legal advice.--

(Footnote continued on next page...)
4

participating in a nationwide investigation into the marketing and sale of prescription 

opioids underlying the nationwide opioid epidemic.

Along with a number of other DAs6from across the Commonwealth, in 

2018, DA Krasner filed two, one-count complaints in coordinated proceedings 

against Distributors and Manufacturer in the Delaware County Court of Common 

Pleas (trial court). In 2021, DA Zappala filed two similar one-count actions that 

were transferred to the trial court. These actions were based on the DAs’ authority 

(1) Upon the request of the Governor or the head of any 

Commonwealth agency, the [AG] shall furnish legal advice 

concerning any matter or issue arising in connection with the 

exercise of the official powers or the performance of the official 

duties of the Governor or agency. . . .

(2) If the Governor or the head of any Commonwealth agency 

disagrees with the legal advice rendered by the [AG], the Governor 

or the head of the Commonwealth agency may seek a declaratory 

judgment in the Commonwealth Court pursuant to [the DJA]. . . .

* * *

(c) Civil litigation; collection of debts.--The [AG] shall represent 

the Commonwealth and all Commonwealth agencies . . . in any 

action brought by or against the Commonwealth or its agencies, and 

may intervene in any other action . . . .

(d) Administration of consumer affairs programs.--The [AG]

shall administer the provisions relating to consumer protection set 

forth in [S]ections 917 through 922 of the [Administrative Code of 

1929, Act of April 9, 1929, P.L. 177, as amended, added by the Act 

of December 17, 1968, P.L. 1221, 71 P.S. §§ 307-1–307-6], and 

appoint the advisory committee established under section 922.

6 Article IX, section 4 of the Pennsylvania Constitution states that “[c]ounty officers shall 

consist of . . . district attorneys . . . .” Pa. Const. art. IX, §4.
5

under Section 4 of the Unfair Trade Practices and Consumer Protection Law (Law),7

to address the causes of the opioid epidemic flowing from Distributors’ and 

Manufacturer’s unfair methods of competition and unfair or deceptive acts or 

practices in the production, marketing, sale, and distribution of opioids in violation 

of the Law.

In July 2021, the AG and three other state attorneys general announced 

their support for a proposed Settlement Agreement with Distributors and 

Manufacturer under which these companies would agree to pay the states and their 

“Subdivisions” that joined the settlement8 more than $21 billion over an 18-year 

period from Distributors, and $5 billion over a 9-year period from Manufacturer. 

See PFRs Exhibit B ¶IV(A). With respect to the enforcement of the executed 

Settlement Agreement, ¶XI(A) states:

A. Scope. As of the Effective Date, the Released Entities 

are hereby released and forever discharged from all of the 

Releasors’[9] Released Claims. Each Settling State (for 

7 Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §201-4. Section 4 states:

Whenever the [AG] or a [DA] has reason to believe that any person 

is using or is about to use any method, act or practice declared by 

[S]ection 3 of this [Law] to be unlawful, and that proceedings would 

be in the public interest, he may bring an action in the name of the 

Commonwealth against such person to restrain by temporary or 

permanent injunction the use of such method, act or practice.

8 Both Allegheny County and the City of Philadelphia are “Litigating Subdivisions” and 

“Primary Subdivisions” that may be parties to the settlement if it is approved by them. See PFRs 

Exhibit B ¶VII, and at C-36, C-37, I-36, I-37.

9 Settlement Agreement ¶I(III) defines “Releasors” as follows:

With respect to Released Claims, (1) each Settling State; (2) each 

Participating Subdivision; and (3) without limitation and to the 

(Footnote continued on next page...)
6

itself and its Releasors) and Participating Subdivision 

hereby absolutely, unconditionally, and irrevocably

covenants not to bring, file, or claim, or to cause, assist or 

permit to be brought, filed, or claimed, or to otherwise 

seek to establish liability for any Released Claims against 

any Released Entity in any forum whatsoever. The 

releases provided for in this Agreement are intended by 

the Parties to be broad and shall be interpreted so as to give 

the Released Entities the broadest possible bar against 

any liability relating in any way to Released Claims and 

extend to the full extent of the power of each Settling 

State and its Attorney General to release claims. This 

Agreement shall be a complete bar to any Released Claim.

maximum extent of the power of each Settling State’s Attorney

General and/or Participating Subdivision to release Claims, (a) the 

Settling State’s and Participating Subdivision’s departments, 

agencies, divisions, boards, commissions, Subdivisions, districts, 

instrumentalities of any kind and attorneys, including its Attorney 

General, and any person in his or her official capacity whether 

elected or appointed to serve any of the foregoing and any agency, 

person, or other entity claiming by or through any of the foregoing, 

(b) any public entities, public instrumentalities, public educational 

institutions, unincorporated districts, fire districts, irrigation 

districts, and other Special Districts in a Settling State, and (c) any 

person or entity acting in a parens patriae, sovereign, quasisovereign, private attorney general, qui tam, taxpayer, or other 

capacity seeking relief on behalf of or generally applicable to the 

general public with respect to a Settling State or Subdivision in a 

Settling State, whether or not any of them participate in this 

Agreement. The inclusion of a specific reference to a type of entity 

in this definition shall not be construed as meaning that the entity is 

not a Subdivision. Each Settling State’s Attorney General 

represents that he or she has or has obtained (or will obtain no later 

than the Initial Participation Date) the authority set forth in Section 

XI.F. In addition to being a Releasor as provided herein, a 

Participating Subdivision shall also provide the Subdivision 

Settlement Participation Form referenced in Section VII providing 

for a release to the fullest extent of the Participating Subdivision’s 

authority.

PFRs Exhibit B ¶I(III) (emphasis added).
7

PFRs Exhibit B ¶XI(A) (emphasis added). The AG has approved the Settlement 

Agreement and it has moved on to the Subdivisions, i.e., the City of Philadelphia10

and Allegheny County,

11 for their approval on January 2, 2022. See PFRs Exhibit B 

10 Pursuant to article IX, section 13 of the Pennsylvania Constitution, the Philadelphia 

County offices have generally been abolished, with some exceptions such as the DA, and the City 

performs all of the former functions of county government. Pa. Const. art. IX, §13. Under Section 

3-101 of The Philadelphia Code, the City Solicitor is the head of the City’s Law Department. In 

turn, Section 4-400(a), (b) and (c) of The Philadelphia Code states, in pertinent part:

The Law Department shall have the power and its duty shall be to 

perform the following functions:

(a) Legal Advice. It shall furnish legal advice to the mayor, to the 

Council and to all officers, departments, boards and commissions

concerning any matter or thing arising in connection with the 

exercise of their official powers or performance of their official 

duties and except as otherwise expressly provided, shall supervise, 

direct and control all of the law work of the City.

(b) Litigation. The Department . . . shall represent the City and 

every officer, department, board or commission in all litigation. . . .

(c) Contracts and Bonds. The Department shall prepare or approve 

all contracts, bonds and other instruments in writing in which the 

City is concerned . . . .

Philadelphia Code §4-400(a), (b), (c).

11 Under Article V, Section 3 of the Allegheny County Home Rule Charter, the County 

Solicitor “shall be the chief legal officer of the County and serve as the director of the Law 

Department.” Additionally, Allegheny County Administrative Code Section 5-405.03(C), (D), 

(E), and (G) states:

The County Solicitor shall be the Director of the Law Department 

and shall perform the following duties and responsibilities:

* * *

(Footnote continued on next page...)
8

¶¶II, VIII. Because the Settlement Agreement purports to extinguish their actions in 

the trial court under the Law, by effectively resolving all claims against Distributors 

and Manufacturer, the DAs filed the instant PFRs seeking a judgment: (1) declaring 

that the AG lacks the authority to release the DAs’ claims filed under the Law; (2) 

enjoining the AG’s release of the DAs’ claims filed under the Law against 

Distributors and Manufacturer; and (3) providing any other relief that this Court 

deems just and proper.

However, as alleged in the AG’s, Distributors’, and Manufacturer’s 

third and fifth POs, the Settlement Agreement has not yet been executed by the 

parties to become effective, or interposed into the trial court proceedings to 

extinguish the DAs’ claims in those matters. As this Court has explained:

C. Commence and prosecute all suits brought or to be brought 

by the County wherein or whereby any rights, privileges, properties, 

claims or demands of the County are involved, as well as to defend 

all actions, suits, grievances, claims or potential claims brought or 

alleged against the County;

D. With the authority of the Chief Executive, compromise and 

settle actions, suits, claims or potential claims brought by or against 

the County, with notification to Council, prior to or 

contemporaneous with execution of the agreement;

E. Prepare, or cause to be prepared, as directed by the Manager, 

and/or approve as to form all contracts, agreements, leases, surety 

bonds or other legal documents on behalf of the County; [and]

* * *

G. Perform all duties now performed by County Solicitors 

under the laws of the Commonwealth and to do, perform every and 

all professional acts, and render legal advice incident to the office 

of County Solicitor, which may be required under the Charter.

The Administrative Code of Allegheny County §5-405.03(C), (D), (E), and (G).
9

It is well established that “[d]eclaratory judgments are not 

obtainable as a matter of right. Rather, whether a court 

should exercise jurisdiction over a declaratory judgment 

proceeding is a matter of sound judicial discretion.” A 

substantial limitation on the exercise of such jurisdiction 

is the principle that we will not adjudicate a petition for 

declaratory judgment where the issues are not ripe for 

determination. In deciding whether the doctrine of 

ripeness bars our consideration of a declaratory judgment 

action, both the state and federal courts employ a two-part 

test: “[t]he court must consider whether the issues are 

adequately developed for judicial review and what 

hardship the parties will suffer if review is delayed.”

The first prong of the test, whether the issues are 

adequately developed for judicial review, itself contains 

two parts. The first is whether the asserted deprivation of 

rights (or entitlement to relief) is immediate or is 

hypothetical and contingent upon uncertain future events. 

Our Supreme Court has stated the following:

Only where there is a real controversy may a party 

obtain a declaratory judgment.

A declaratory judgment must not be employed to 

determine rights in anticipation of events which 

may never occur or for consideration of moot cases 

or as a medium for the rendition of an advisory 

opinion which may prove to be purely academic.

“A substantial contingency is the classic impediment to a 

pre-enforcement challenge [to a new statute].” The second 

part of the first prong is whether resolution of the 

constitutional or other legal dispute will involve 

substantial fact-finding. Obviously, the more fact 

intensive the dispute, the more significant the obstacle 

posed by the uncertainty of future events. The United 

States Supreme Court has explained as follows:

the reason [for] postponing [a] decision until a 

constitutional issue is more clearly focused by, and 

receives the impact from, occurrence in particular 

circumstances is precisely that those circumstances 
10

may reveal relevancies that abstract, prospective 

supposition may not see or adequately assess.

The second prong of the ripeness test recognizes 

that, even where the case is not as fully developed for 

judicial review as the court would find appropriate, it may 

still address the merits if refusal to do so would work a 

demonstrable hardship on the parties. This could occur, 

for instance, if a new statute provided criminal sanctions 

for conduct that was believed to involve constitutionally 

protected speech. In that case, a pre-enforcement 

challenge might be heard so that the plaintiffs would not 

risk incarceration as the price of testing the law.

The ripeness test was succinctly summarized . . . as 

follows:

A court should look to (1) “the fitness of the issues 

for judicial decision,” and (2) “the hardship to the 

parties of withholding court consideration.” Under 

the “fitness for review” inquiry, a court considers 

whether the issues presented are purely legal, as 

opposed to factual, and the degree to which the 

challenged action is final. The various factors that 

enter into a court’s assessment of fitness include: 

whether the claim involves uncertain and contingent 

events that may not occur as anticipated or at all; the 

extent to which a claim is bound up in the facts; and 

whether the parties to the action are sufficiently 

adverse.

The second prong focuses on the hardship that may 

be entailed in denying judicial review, and the 

determination whether any such hardship is 

cognizable turns on whether the challenged action 

creates a “direct and immediate” dilemma for the 

parties, such that the lack of pre-enforcement 

review will put the plaintiffs to costly choices.

Applying this test, we must conclude that the [petitioner’s]

claims are not ripe for consideration.
11

City Council of Philadelphia v. Commonwealth, 806 A.2d 975, 978-80 (Pa. Cmwlth.

2002), vacated and remanded on ripeness grounds, 847 A.2d 55 (Pa. 2004) (citations 

omitted).12

Likewise, at this juncture in this matter, it is impossible for this Court 

to declare the respective rights of the parties regarding a Settlement Agreement that 

has yet to be executed and that may still be modified, as it has been before. It is also 

impossible for this Court to enjoin the AG from releasing the DAs’ claims under a 

Release that has yet to be executed, or introduced into the trial court proceedings,

that may potentially provide the basis upon which the trial court may dismiss the 

DAs’ claims. In short, under the first prong of the foregoing test, the DAs’ claims 

“involve[] uncertain and contingent events that may not occur as anticipated or at 

all,” and any relief that this Court may grant “is bound up in the facts” as they relate 

to the terms of the Settlement Agreement and Release that have yet to be finalized

or executed. City Council of Philadelphia, 806 A.2d at 980. Additionally, with 

respect to the second prong of the foregoing test, the DAs’ claims do not “create[] a 

‘direct and immediate’ dilemma for the parties, such that the lack of pre-enforcement 

review will put the[m] to costly choices” at the current stage of the proceedings. Id. 

As a result, unless and until any finalized Settlement Agreement and/or Release are 

executed and affect the DAs’ rights in a substantial and concrete manner, any 

opinion that this Court would issue at this stage of the proceedings would be an 

impermissible advisory opinion. Id.

12 The case was vacated and remanded “in light of the stipulation at argument by the parties 

that power over the Philadelphia Gas Works has been transferred to the Pennsylvania Utility 

Commission,” thereby making the matter ripe for review by this Court. City Council of 

Philadelphia, 847 A.2d at 56.
12

Accordingly, we sustain the AG’s, the Distributors’ and the 

Manufacturer’s POs, and dismiss the PFRs.13

MICHAEL H. WOJCIK, Judge

Judge Covey did not participate in the decision of this case.

Judge Fizzano Cannon did not participate in the decision of this case.

13 Based on the foregoing disposition of the POs, we will not address any remaining POs. 

Additionally, the AG’s December 13, 2021 Application for Relief in the Nature of a Motion for 

Leave to Correct Factual Record, the DAs’ December 22, 2021 Application for Relief to reply 

thereto, and the DAs’ December 14, 2021 Emergency Application for Relief in the Nature of a 

Notice of Supplemental Authority, are dismissed as moot.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Commonwealth of Pennsylvania, : 

by and through The Philadelphia :

District Attorney, Larry Krasner, :

:

Plaintiff :

:

 v. : No. 233 M.D. 2021

:

The Attorney General of the :

Commonwealth of Pennsylvania, :

:

Defendant :

The Commonwealth of Pennsylvania, :

by and through the Allegheny :

County District Attorney, Stephen A. :

Zappala, Jr., :

:

Plaintiff :

:

 v. : No. 250 M.D. 2021

:

The Attorney General of the :

Commonwealth of Pennsylvania, :

McKesson Corp., Cardinal Health, :

Inc. and AmerisourceBergen Drug Corp., :

:

Defendants :

The Commonwealth of Pennsylvania, : 

by and through The Philadelphia :

District Attorney, Larry Krasner, :

:

Plaintiff :

:

 v. : No. 260 M.D. 2021

:

The Attorney General of the :

Commonwealth of Pennsylvania, :

:

Defendant :
The Commonwealth of Pennsylvania, :

by and through the Allegheny :

County District Attorney, :

Stephen A. Zappala, Jr. :

:

Plaintiff :

:

 v. : No. 261 M.D. 2021

:

The Attorney General of the :

Commonwealth of Pennsylvania, :

Johnson & Johnson, Janssen :

Pharmaceuticals, Inc., Ortho-McNeil- :

Janssen Pharmaceuticals, Inc., and :

Janssen Pharmaceutica, Inc., :

:

Defendants :

O R D E R

AND NOW, this 4

th day of February, 2022, the Defendants’ preliminary 

objection is sustained, and the Plaintiffs’ Complaints for Declaratory Relief are 

DISMISSED. The Attorney General of the Commonwealth of Pennsylvania’s 

Application for Relief in the Nature of a Motion for Leave to Correct Factual Record, 

Plaintiffs’ Application for Relief to reply thereto, and The Philadelphia District 

Attorney, Larry Krasner’s and The Allegheny County District Attorney, Stephen A. 

Zappala, Jr.’s Emergency Application for Relief in the Nature of a Notice of 

Supplemental Authority, are DISMISSED as moot.

__________________________________

MICHAEL H. WOJCIK, Judge