PITTSBURGH – A class action lawsuit claiming Sheetz convenience stores violated state law by charging sales tax on non-flavored mineral water is headed to Allegheny County’s Commerce and Complex Litigation Center.
On Aug. 13, counsel for Sheetz filed a consent motion to place the case in the CCLC, because the action “gives rise to complex commercial litigation”, the Allegheny County class action judge had not assumed responsibility for the matter and the plaintiff did not oppose the assignment of the case there.
Jennifer Montgomery (on behalf of herself and all others similarly situated) of Natrona Heights first filed suit in the Allegheny County Court of Common Pleas on June 26 against Sheetz, Inc. of Altoona.
“While the precise number is not yet known, plaintiff believes therefore avers, subject to further discovery, that defendant Sheetz makes millions of dollars in sales in the Commonwealth of Pennsylvania which involve the sale of non-flavored mineral water, such as but not limited to, Perrier, San Pellegrino and Gerolsteiner,” the lawsuit stated.
On June 1, Montgomery bought such a bottle of non-flavored mineral water at its store in Sarver, for which she was charged $0.11 in sales tax. Similarly, on June 14, Montgomery bought another bottle of water at a Sheetz store in Pittsburgh and was again charged sales tax on the purchase.
Montgomery’s lawyers explained 72 P.S. Section 7202 imposes state sales tax of 6 percent of the purchase statewide, along with 7 percent in Allegheny County and 8 percent in Philadelphia County, which is to be collected by the vendor from the purchaser. However, the plaintiff says that regulation specifically exempts certain food and beverage items from that same tax.
“Moreover, the Department of Revenue gave express notice to the public, pursuant to 61 Pa. Code Section 58.1 that, ‘Water, including non-flavored mineral water, is not taxable,” the suit states.
“The Department of Revenue also issues a ‘Retailer’s Information’ booklet that identifies taxable and exempt property sold in the Commonwealth. In that booklet, the Department of Revenue expressly advised retailers, including grocery stores, supermarkets, convenience stores and establishments similar to defendant Sheetz that, ‘Water, including non-flavored mineral water, is not taxable.”
Montgomery argues that despite that tax regulation and related information, Sheetz has overcharged and continues to overcharge Pennsylvania residents who patronize its stores statewide.
“Further, it is believed and further averred that at least until Aug. 1, 2016, and perhaps later, defendant Sheetz benefited from these overcharges since it received a ‘commission’ of 1 percent of taxes improperly charged or collected by virtue of Section 7227 of the Pennsylvania Tax Code,” per the litigation.
According to the litigation, Sheetz has retail stores in at least six states and operates 276 stores in Pennsylvania.
It did not respond to inquiries from the Pennsylvania Record regarding the litigation.
For counts of conversion and misappropriation, breach of constructive trust, unjust enrichment, unfair trade practices and injunction, the plaintiffs are seeking treble damages in an amount yet to be determined, but in excess of the court’s arbitration limits, plus punitive damages, costs, interests, attorney’s fees.
Furthermore, an injunction is sought to prevent any further allegedly-improper collection by Sheetz and a request for a refund from the Pennsylvania Department of Revenue, so that class members can be reimbursed for Sheetz’s allegedly-improper collection practices.
The plaintiffs are represented by Frank G. Salpietro and Richard A. Monti of Rothman Gordon, plus Steffan T. Keeton of The Keeton Firm, all in Pittsburgh.
The defendant is represented by David B. Fawcett, James L. Rockney Jr. and Ginevra F. Ventre of Reed Smith, also in Pittsburgh.
Allegheny County Court of Common Pleas GD-19-009121
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com